Clarke v. U.S.

• Decision Date: 08 November 1989
• Docket Number: No. 88-5439,88-5439
• Citation: 886 F.2d 404
• Parties: , 58 USLW 2192, 56 Ed. Law Rep. 731 David A. CLARKE, et al. v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 404

886 F.2d 404

280 U.S.App.D.C. 387, 58 USLW 2192,

56 Ed. Law Rep. 731

David A. CLARKE, et al. v. UNITED STATES of America, Appellant.

No. 88-5439.

United States Court of Appeals District of Columbia Circuit.

Argued April 20, 1989.

Decided Sept. 26, 1989.

As Amended Nov. 8, 1989.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 88-03190).

John C. Harrison, Associate Deputy Atty. Gen., U.S. Dept. of Justice, for appellant. John R. Bolton, Asst. Atty. Gen. at the time the brief was filed, and Jay B. Stephens, U.S. Atty., and Michael Jay Singer and Alfred Mollin, Attys., U.S. Dept. of Justice, were on the brief for appellant.

I. Michael Greenberger, with whom James R. Bird and Gregory E. Mize were on the brief, for appellees.

Lincoln C. Oliphant was on the brief for amici curiae U.S. Senators and U.S. Representatives, urging reversal.

Michael Davidson, Senate Legal Counsel, and Ken U. Benjamin, Jr., and Morgan J. Frankel, Asst. Senate Legal Counsel, were on the brief for amicus curiae U.S. Senate, urging reversal.

Rex E. Lee, Carter G. Phillips, and Mark D. Hopson were on the brief for amici curiae Nat. Ass'n of Evangelicals, et al., urging reversal.

John Vanderstar, Nan D. Hunter, Arthur B. Spitzer, Elizabeth Symonds, and Austin P. Frum were on the brief for amici curiae American Civ. Liberties Union, ACLU of the Nat. Capital Area, and Unitarian Universalist Ass'n, urging affirmance.

Murray R. Garnick was on the brief for amicus curiae Washington Council of Lawyers, urging affirmance.

Philip W. Horton entered an appearance for amicus curiae Washington Council of Lawyers, urging affirmance.

Before EDWARDS and BUCKLEY, Circuit Judges, and ROBINSON, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge EDWARDS.

Concurring opinion filed by Circuit Judge BUCKLEY.

HARRY T. EDWARDS, Circuit Judge:

The issue in this case is whether Congress, consistent with the Constitution, can compel members of the Council of the District of Columbia ("the Council") to enact a particular piece of legislation. In response to a judicial decision construing District of Columbia law to bar Georgetown University from discriminating on the basis of sexual preference, Congress passed the Nation's Capital Religious Liberty and Academic Freedom Act, Pub.L. No. 100-462, Sec. 145, 102 Stat. 2269-14 (1988), also known as the "Armstrong Amendment." The Armstrong Amendment makes expenditure of funds appropriated for the District in the current fiscal year contingent on the Council's adoption of the following measure:

[I]t shall not be an unlawful discriminatory practice in the District of Columbia for any educational institution that is affiliated with a religious organization or closely associated with the tenets of a religious organization to deny, restrict, abridge, or condition--

(A) the use of any fund, service, facility, or benefit; or

(B) the granting of any endorsement, approval, or recognition,

to any person or persons that are organized for, or engaged in, promoting, encouraging, or condoning any homosexual act, lifestyle, orientation, or belief.

Id. Sec. 145(c).

Instead of enacting this measure into District law, however, all thirteen members of the City Council ("appellees" or "Council members") filed suit in federal court, attacking the constitutionality of the Armstrong Amendment on various grounds. The District Court held that the Armstrong Amendment, by compelling Council members to vote in favor of a particular piece of legislation, violated the Council members' right to free speech, see Clarke v. United States, 705 F.Supp. 605 (D.D.C.1988), and appellant United States ("United States" or "the Government") appealed.

The Supreme Court long ago made it clear that "[t]he manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy." Bond v. Floyd, 385 U.S. 116, 135-36, 87 S.Ct. 339, 349, 17 L.Ed.2d 235 (1966). Pursuant to this mandate, the First Circuit recently held that "the act of voting on public issues by a member of a public agency or board comes within the freedom of speech guarantee of the first amendment," and that "[t]here can be no more definite expression of opinion than by voting on a controversial public issue." Miller v. Town of Hull, 878 F.2d 523, 532 (1st Cir.1989). We agree. Accordingly, we hold that the votes of each appellee, like the votes of any other legislator, constitute "speech" protected by the First Amendment. Because the Armstrong Amendment coerces the Council members' votes on a particular piece of legislation, and because none of the interests asserted to justify the Amendment is sufficient--under any standard of First Amendment review--to justify the abridgment of the Council members' free speech rights, we find the Armstrong Amendment unconstitutional. The judgment of the District Court is therefore affirmed.

I. BACKGROUND

A. The Structure of District Government

To understand the full dimensions of this case, it is necessary to examine the nature and background of local government in the District. Article I, section eight of the Constitution authorizes Congress "[t]o exercise exclusive Legislation in all Cases whatsoever, over ... the Seat of the Government of the United States," a grant of power that has been construed to invest Congress with near-plenary authority over the structure of government in the District. See, e.g., Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76, 102 S.Ct. 2858, 2874, 73 L.Ed.2d 598 (1982); Palmore v. United States, 411 U.S. 389, 397-98, 93 S.Ct. 1670, 1676, 36 L.Ed.2d 342 (1973). Although Congress has provided for a variety of governmental frameworks since the District was incorporated in 1802, for most of the District's existence until 1973, its governors were selected without the electoral input of the District's residents. See generally H.R.REP. NO. 482, 93d Cong., 1st Sess. 47-49 (1973) [hereinafter H.R.REP. NO. 482], reprinted in 2 STAFF OF HOUSE COMMITTEE ON THE DISTRICT OF COLUMBIA, 93 D CONG., 2 D SESS., HOME RULE FOR THE DISTRICT OF COLUMBIA 1973-1974, BACKGROUND AND LEGISLATIVE HISTORY OF H.R. 9056 AND H.R. 9682 AND RELATED BILLS CULMINATING IN THE DISTRICT OF COLUMBIA SELF-GOVERNMENT AND GOVERNMENTAL REORGANIZATION ACT 1487-89 (Comm. Print 1974) [hereinafter LEGISLATIVE HISTORY]. This long absence of democratic government in the nation's capital drew regular bipartisan objection, ¹ and led to repeated legislative efforts to provide for representative government in the District. See S. REP. NO. 219, 93 D CONG., 1ST SESS. 3 (1973), reprinted in 3 LEGISLATIVE HISTORY at 2723 (noting that over 40 home rule bills were introduced in Congress between 1874 and 1972).

These efforts culminated successfully with the passage of the District of Columbia Self-Government and Governmental Reorganization Act ("Home Rule Act"), Pub.L. No. 93-198, 87 Stat. 774 (1973). Intended to "grant the inhabitants of the District of Columbia powers of local self-government," id. Sec. 102(a), the Home Rule Act provides for a popularly elected Council and a popularly elected Mayor, id. Secs. 401(a), 421(a), charged with responsibility for superintending municipal life in the District. The central aim of the Act, in short, was to provide the District "a system of municipal government similar to that provided in all other cities throughout the United States." H.R.REP. NO. 482 at 2, reprinted in 2 LEGISLATIVE HISTORY at 1442. As House supporters of home rule explained:

Restoration of an elected local government with powers of legislation and finance is, in the judgment of the committee, perhaps the most important step which this or any Congress can take for the Nation's Capital. Self-government is necessary to responsive and responsible government.

Id. at 50, reprinted in LEGISLATIVE HISTORY at 1490.

The Home Rule Act vests the District's legislative power in the Council. See Home Rule Act Sec. 404(a). Under the legislative process established by the Act, the Council has the authority, subject to approval by the Mayor, to enact laws for the District by majority vote, and the power to override mayoral vetoes by a two-thirds vote. See id. Secs. 404(e), 412(a). The legislative power conferred by the Act to the Council, with enumerated exceptions, "extend[s] to all rightful subjects of legislation within the District consistent with the Constitution of the United States and the provisions of this Act." Id. Sec. 302.

The Home Rule Act's delegation of legislative power, however, is neither complete nor irrevocable. Congress provided several mechanisms to assure itself a supervisory role in District governance. Most significantly, under section 601 of the Act, Congress "reserve[d] the right, at any time, to exercise its constitutional authority as legislature for the District, by enacting legislation for the District on any subject ... including legislation to amend or repeal any law in force in the District ... and any act passed by the Council." Home Rule Act Sec. 601. ² Moreover, although the Council and Mayor are obliged to prepare an annual budget for the District, see id. Sec. 442, no expenditures may be made by the District--either of funds furnished to the District by the federal Government or of funds raised through the District's own means of revenue collection--unless approved by act of Congress, see id. Sec. 446. Finally, of course, Congress retains its constitutional authority under article I, section eight to modify or even abolish the framework of local government established by the Home Rule Act.

B. The Armstrong Amendment

The Armstrong Amendment was passed by Congress in response to the District's Human Rights Act, D.C. CODE ANN. Secs. 1-2501 to 1-2557 (1981). Enacted by the Council in 1977, the Act was intended to prohibit discrimination in...