October 11, 2022

Culture War Hypotheticals Dominate in California Pork Law Challenge


State laws on gender-affirming surgery quick y becoming a major culture war issue were on the mind Tuesday of at least one justice during the U.S. Supreme Court's argument
over a California ban on the sale of pork from sows housed in ways inconsistent with the state's standards.

Justice Amy Coney Barrett raised the gender-affirming surgery theoretical in a blizzard of hypotheticals posed by the justices as they explored whether the so-called dormant
commerce clause is violated by California's law which is based on a morality interest and an interest in health and safety.

"So could you have California pass a law that said we're not going to buy any pork from companies that don't require all their employees to be vaccinated or from corporations
that don't fund gender-affirming Surgery or that sort of thing?" Barrett asked California Solicitor General Michael Mongan.

Mongan called those hypotheticals "problematic" because the regulation is focused on general company wide policy and not on the production of the goods coming into the state.

During more than two hours of argument other justices asked if states also could ban the sale of certain products unless made by union members or nonunion members or by
undocumented immigrants?

California voters in 2018 approved Proposition 12 a referendum to prevent animal cruelty by phasing out extreme methods of farm animal confinement " and to protect the
"health and safety" of state consumers.

The National Pork Producers Council challenged the law in 2019 arguing that it would result in a wholesale change in the industry's operation costing pork farmers enormous
amounts of money and increasing the prices of their products. A federal district court dismissed the complaint, and the U.S. Court of Appeals for the Ninth Circuit affirmed.

Proposition 12 prohibits a business from knowingly selling whole pork meat in the state unless the pig comes from a sow that was housed in a 24-square-foot pen that allowed
the sow to turn around without touching the pen.

"No other state requires sows to be housed as California does " Mayer Brown partner Timothy Bishop representing the National Pork Producers Council told the justices. "The
aaly safe course is to raise pigs the California way" and that is an unconstitutional, extraterritorial regulation of an industry outside of California's borders

Bishop argued for a per se rule saying that laws that condition in-state sales on out-of-state producers operating in a particular way will always burden interstate commerce.

Justice Neil Gorsuch told Bishop that the council's lawsuit alleges harm to large pork producers but he added, "We have other pork producers happy to step in and segregate
their pork. Perdue is one. How have you plausibly alleged harm to interstate commerce?"

Bishop said that most pork products combine cuts from different animals and it is nearly impossible to determine where the product originated. "Everything is sold except the
'Oink,'" he explained.

Barrett questioned Bishop's argument that morality is not a legitimate rationale for the state law. "Morals can't count as opposed to safety and health?" she asked.

Bishop said if morality counted, states could impose all sorts of conditions. States are entitled to enforce morals inside their borders but they cannot impose them outside jag.
said. Deputy Solicitor General Edwin Kneedler sharing argument time with Bishop, agreed but the government's main argument was that the court should not impose a per se
rule as argued by Bishop, but should engage in weighing the burdens of California's regulation against the benefits.

Mongan argued that the state's voters did not want to be complicit in a process that they found "morally objectionable and perceived to be unsafe." Proposition 12 he said.
places no restriction on the sale of pork in other states. The pork council he argued, should be making their case to Congress not asking the justices to extend the dormant
commerce clause.

But Justice Elena Kagan told him "A lot of policy disputes can be incorporated into laws like yours. We live in a divided country and the Balkanization the framers were
concerned about is here today"

Mongan argued that to violate the dormant commerce clause a state regulation has to be tied to the actual production of the product. "A sales restriction is not," he said.

MoloLamken partner Jeffrey Lamken representing the Humane Society of America told the court "Proposition 12 reflects a moral tradition that has been respected for millennia
that consuming meat that is a product of animal cruelty is itself immoral."

But Chief Justice John Roberts Jr. told Lamken "We've heard a lot about morality. I think people in some states maybe the ones that produce a of of pork, in Iowa or North
Carolina or Indiana may think there's a moral value in providing a low-cost source of protein to people, maybe particularly at times of rising food prices."

“Reprinted with permission from the October 11 edition of Law.com © 2022 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.”

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