Thursday, July 2, 2009

Delhi High Court Invalidates India's Sodomy Law: Analysis

Section 377 of the India Penal Code criminalizing sodomy has been declared unconstitutional by the Delhi High Court


 In a lengthy 105 page opinion, available as download here, authored by Chief Justice Muralidhar, the Court reasoned that the "underlying theme of the Indian Constitution" is that of "inclusiveness":

The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognizing a role for everyone.  Those perceived by the majority as "deviants" pr "different" are not on that score excluded or ostracized. . . . In our view, Indian Constitutional law does not permit  the statutory criminal law to be held captive by the popular misconceptions of who LGBT are.  It cannot be forgotten that discrimination is anti-thesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

Opinion at paragraphs 130-131.

The Court's examination of Indian constitutional law stresses the Indian Constitution as "first and foremost a social document," noting that the fundamental rights provisions are the "conscience of the Constitution." (paragraph 80).   The Court considered principles of dignity, privacy, and equality in the context of the Indian and other constitutions.  On the issue of whether the criminalization of sodomy furthered a governmental interest or was related to that interest,  the Court discussed specific cases from other nations including Lawrence v. Texas (US), Dudgeon v. UK, Toonen v. Australia, Norris v. Republic of Ireland, National Coalition for Gay and Lesbian Equality v. Minister of Justice (South Africa), and Vriend v. Alberta (Canada).

The Court also quoted Justice Michael Kirby's recent speech, Homosexual Law Reform: An Ongoing Blind Spot of the Commonwealth of Nations, for rationales supporting the conclusion that the anti-sodomy laws derived from the imperial rules of the British crown are "wrong."  (paragraph 85).

In terms of judicial power, the Court stressed that in a democratic society it is the role of the judiciary to protect fundamental rights (paragraph 125), but noted that Parliament could choose to amend the law to be consistent with the recommendation of the Law Commission (and presumably the Court's Judgment) (paragraph 132).  The Court clarified that the judgment was not retroactive.

The Times of India and the BBC have reports on the court's judgment and reactions to it, including videos.


July 2, 2009 in Comparative Constitutionalism, Fundamental Rights, Interpretation, News, Privacy, Recent Cases, Sexual Orientation, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 1, 2009

Ohio Supreme Court Abortion ruling

Yesterday, the Ohio Supreme Court ruled in an interesting case - Roe v. Planned Parenthood of Southwest Ohio.  The facts of this most intriguing case are these: Thirteen year-old Jane Roe and her 21-year old soccer ccoach John Haller began a sexual relationship resulting in Jane's pregnancy.  Haller encouraged Jane to terminate the pregnancy.  Upon arriving at the clinic, she was asked to fill out a consent form.  Per Haller's instructions, she listed her father's name and address correctly, but provided Haller's phone number.  The clinic called Haller to request parental consent.  When Jane's real parents discovered the chicanery, they called the police.  Haller was arrested for sexual battery.  Planned Parenthood was also investigated, but no criminal charges were filed.  Therefore, the Roes sued Planned Parenthood for violating various Ohio statutes, including, inter alia, failing to obtain parental consent, failing to obtain Jane's properly informed consent, and failing report to report suspected sexual abuse of a minor. 

The last count really is key to the importance of the case.  In discovery, the Roes sought to obtain not only Jane's medical records (which Planned Parenthood provided) but also the redacted medical records of all Planned Parenthood clients going back ten years.  The Roes asserted the information was necessary to prove that Planned Parenthood had engaged in a "pattern and practice" of ignoring possible sexual abuse.  Based on state precedents, the Ohio Supreme Court ruled that there is no such right to the information of third parties, even if redacted.

While the claims were primarily resolved on state law grounds, the ramifications for federal and state law are many.  The majority of states require some form of parental notification or consent.  But the facts of this case highlight just how tenuous those laws can be.  A brief search of the legal literature reveals but a few articles,* but there are enough articles and cases to prove that this is not the first time this has happened, and it will likely not be the last. 

So, what are the options on the consent issue?  The burden could be placed firmly on the doctor to be certain that the consent is legitimate.  However, the question is where does one draw the line in such situations.  Haller engaged in a very manipulative scheme.  It's not impossible to see some clinic being duped in the future on similar facts.  If a clinic truly does act in good faith, should it be penalized?  Moreover, at least one article argues that such a high burden might be an unconstitutional violation of Casey's "undue burden" standard.**  Another option is to follow the lead of states likeTexas and Louisiana which require parental consent forms to be notarized.  However, even this might not entirely eliminate the fraud issue.  At present, it seems the most important thing to do is to recognize the issue and close any legislative loopholes (hopefully without creating new ones).

The second issue is the privacy ruling.  The striking part of the ruling is that the parents were not entitled to even the redacted medical information.  While the case was decided on state law grounds, and tort law as opposed to constitutional law, the right to informational privacy - especially about health information - seems to be gaining traction in this nation (see HIPAA).  While the Court has yet to fully constitutionalize the right (see Whalen), in this context - where another right of privacy is implicated - there might be a stronger argument.*** 

I hope you find this case interesting in teaching these concepts. 


* Katheryn D. Katz, The Pregnant Child's Right To Self-Determination, 62 Alb. L. Rev. 1119 (1999).

** Pammela S. Quinn, Note, Preserving Minors' Rights After Casey: The “New Battlefield” of Negligence and Strict Liability Statutes, 49 Duke L.J. 297 (1999).

*** Ingrid Schüpbach Martin,  The Right To Stay In The Closet: Information Disclosures By Government Officials, 32 Seton Hall L. Rev. 407 (2002).

July 1, 2009 in Abortion, Due Process (Substantive), Fundamental Rights, Privacy | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 30, 2009

Franken is Minnesota's US Senator: The Minnesota Supreme Court distinguishes Bush v. Gore

The Minnesota Supreme Court has issued its decision regarding the Franken-Coleman election (from November 2008).  With Coleman's concession, this ends the saga;  Al Franken will be seated, giving the Democratic party a 60 person "super" majority.

The 32 page per curiam opinion (pdf here) was joined by five justices (not participating were two justices, CJ Magnuson, seated in bottom row center of photo below; and G. Barry Anderson;  standing second from right in photo below).   From a constitutional law perspective, perhaps one of the more interesting


aspects is the equal protection argument and how the Minnesota Court construed Bush v. Gore, a case on which Coleman heavily relied.  The Minnesota Supreme Court did not simply conclude that Bush v. Gore involved the unique circumstances of a presidential election, but instead spent several paragraphs distinguishing Bush v. Gore:

Coleman argues that, in Minnesota's 2008 United States Senate election,
different local election jurisdictions treated similarly situated absentee ballots differently
and that the trial court imposed a stricter standard for compliance with absentee voting
requirements than did election officials, and that those differences violate equal
protection under Bush.

The trial court concluded that Bush is distinguishable in several important respects
and, as a result, does not support Coleman‟s equal protection claim.  We agree.  In Bush,
the Supreme Court specifically noted that it was not addressing the question of “whether
local entities, in the exercise of their expertise, may develop different systems for implementing elections.”   Variations in local practices for implementing
absentee voting procedures are, at least in part, the question at issue here.  As previously
noted, the trial court here found that the disparities in application of the statutory
standards on which Coleman relies are the product of local jurisdictions‟ use of different
methods to ensure compliance with the same statutory standards; that jurisdictions
adopted policies they deemed necessary to ensure that absentee voting procedures would
be available to their residents, in accordance with statutory requirements, given the
resources available to them; and that differences in available resources, personnel,
procedures, and technology necessarily affected the procedures used by local election
officials in reviewing absentee ballots.  As we noted previously, Coleman has not
demonstrated that these findings are clearly erroneous.

Additionally, the essence of the equal protection problem addressed in Bush was
that there were no established standards under Florida statutes or provided by the state
supreme court for determining voter intent; as a result, in the recount process each county
(indeed, each recount location within a county) was left to set its own standards for
discerning voter intent.   Here, there were clear statutory standards for acceptance or rejection of absentee ballots, about which all election officials received
common training.  

Finally, the decision to be made by Florida election officials with which the
Supreme Court was concerned in Bush was voter intent—that is, for whom the ballot was
cast—as reflected on ballots already cast in the election.  In Bush, officials conducting the recount were reviewing the face of the ballot itself, creating opportunities for manipulation of the decision for political purposes.  Here, the decision at issue was whether to accept or reject absentee ballot return envelopes before they were opened, meaning that the actual votes on the ballot contained in the return envelope were not known to the election officials applying the standards.  In summary, we conclude that Bush v. Gore is not applicable and does not support Coleman‟s equal protection claim.  

For all of these reasons, we conclude that Coleman has not proven that either
election officials or the trial court violated his right to equal protection.

Opinion at 20-23 (footnotes and citations omitted).


June 30, 2009 in Elections and Voting, Equal Protection, Federalism, Fourteenth Amendment, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, June 29, 2009

Kennedy remained the "swing" vote in the 2008-2009 Term

Kennedy's reputation as the "swing vote" on the United States Supreme Court is substantiated by his performance during the Term that concluded today.  According to the wonderfully informative "Super Stat Pack" by ScotusBlog, available here, Kennedy was in the majority 92.4% of the time in 79 opinions, and perhaps more importantly, 88.7% of the time in the 53 opinions in divided cases in which there was at least one dissenting vote.  According to ScotusBlog this is an even higher number than Kennedy's "stats" from last Term - 85.5% and 79.2% respectively.

(Just for fun, consider jotting down your own ranking of the Justices before you look at the Scotusblog stats for "frequency in the majority: Second after Kennedy?   Last at 47.2%?).

This doesn't mean that Kennedy authored the most opinions.  Indeed, according to the ScotusBlog "Final Stats," Kennedy ranks last in "Opinion Authorship" at 14 Opinions.

Given these statistics, it might be a good time to turn to a new book, The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty, by Helen J. Knowles.  


An informative review of the book is available in Law & Politics Book Review here.  The reviewer, Tobias Gibson, writes:

Knowles uses the Introduction of the book to suggest that Kennedy’s reputation of writing opinions which are “doctrinally weak” does not do justice to the Justice. Instead, the purpose of this book is “to try to identify some of the most prominent and important philosophical and legal threads that are woven into the cloth from which Justice Kennedy’s jurisprudence is cut.”  Knowles starts from the assertion that Kennedy is a “moderate libertarian.” This assertion stems from Kennedy’s avoidance of radical legal positions, coupled with his belief in diverse views and protection of human dignity.

Gibson and Knowles are both political scientists and Gibson recommends the book highly.  However, Gibson provides a good outline of the chapters (as is typical in a short review) so that readers who are law professors have information to decide whether or not the book would add to their own insights. 


June 29, 2009 in Books, Fundamental Rights, Interpretation, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Ricci Firefighters Race Discrimination Case: Preliminary Analysis

In a 5-4 decision, with the Court's opinion authored by Kennedy, the majority concludes that the city of New Haven violated Title VII, reversing the Second Circuit. 

Weighing in at 93 pages, the opinion is available as pdf here.

Here is the split amongst the Justices:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined.  SCALIA, J., filed a concurring opinion.  ALITO, J., filed a concurring opinion, in which SCALIA and THOMAS, JJ., joined. 

GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.

The Court's majority opinion avoided the equal protection challenge, but the Court does seem to look to equal protection doctrine for guidance.  The Court's syllabus explains:

The Court has considered cases similar to the present litigation, but in the context of the Fourteenth Amendment’s Equal Protection Clause.  Such cases can provide helpful guidance in this statutory context.  See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 993.  In those cases, the Court held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “strong basis in evidence” that the remedial actions were necessary.  Richmond v. J. A. Croson Co., 488 U. S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277. In announcing the strong-basis in-evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other.  476 U. S., at 277. It reasoned that “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees.” Ibid.  The same interests are at work in the interplay between Title VII’s disparate-treatment and disparate-impact provisions.

Ginsburg, dissenting, views the importance of the Equal Protection Clause differently:

In construing Title VII, I note preliminarily, equal protection doctrine is of limited utility. The Equal Protection Clause, this Court has held, prohibits only intentional discrimination; it does not have a disparate-impact component. See Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 272 (1979); Washington v. Davis, 426 U. S. 229, 239 (1976). Title VII, in contrast, aims to eliminate all forms of employment discrimination, unintentional as well as deliberate. Until today, cf. ante, at 25; ante, p. 1 (SCALIA, J., concurring), this Court has never questioned the constitutionality of the disparate-impact component of Title VII, and for good reason.

Dissenting Opinion at 21.

The Court's opinion was eagerly anticipated, not only because of the important issue of the intersection between Title VII and the Equal Protection Clause, especially when race discrimination is raised by white plaintiffs, but because Sonia Sotomayor is one of the authors of the opinion below.

As a reminder, the Second Circuit opinion was a per curiam opinion signed by Rosemary S. Pooler, Robert D. Sack and Sonia Sotomayor, and is typically (for per curiam opinions) succinct:

Plaintiffs appeal from a judgment of the United States District Court for the District of Connecticut (Arterton, J.) granting the defendants' motion for summary judgment on all counts.

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 554 F.Supp.2d 142, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D.Conn. Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.


June 29, 2009 in Equal Protection, Race, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Sunday, June 28, 2009

"Preventative Detention Model Act": Framework for Obama?

The likelihood of an Executive Order on "indefinite detention" is being widely discussed.  For example, the Washington Post reported yesterday:

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Pow-image Glenn Greenwald at here has extensive coverage with lots of links and discussion, especially focusing on criticisms of Obama's failure to keep his campaign pledges to be different from Bush.

NPR, however, has reported on a proposal "from two experts outside of government"  that "is already being discussed in the Obama administration."  The proposal is from the Brookings Institution, heralded with this opening salvo: "A consensus is beginning to emerge in the public and political spheres concerning the non-criminal detention of terrorist suspects."  The NPR story, however, has one of the two authors of the report acknowledging that " it will be controversial."

The proposal is definitely worth a look.  Entitled "Designing Detention: A Model Law for Terrorist Incapacitation," and authored by Benjamin Wittes and Colleen A. Peppard, download here, the first 27 pages is an analysis and discussion.  For scholars and policy analysists, this discussion provides an excellent overview of the controversies.

The last 10 pages - - - the Appendix - - -  is actually a model statute (or perhaps Executive Order?).  It provides from some judicial oversight, although a suspension of the rules of evidence during those hearings, and numerous other specifics.  For those teaching this summer, whether in the US or elsewhere, this proposal would make an excellent exam question


June 28, 2009 in Executive Authority, Executive Privilege, Fundamental Rights, News, War Powers | Permalink | Comments (0) | TrackBack (0)