September 4, 2010
Funding Policy Discriminates Against Religion, Seventh Circuit Rules
A divided panel of the Seventh Circuit ruled last week that a university's policy of declining to fund student group worship, proselytizing, and religious instruction unconstitutional. The case, Badger Catholic v. Walsh, highlights the shortcomings in the Supreme Court's approach to the First Amendment in a limited public forum.
The plaintiff in the case, a student group called Badger Catholic, challenged the University of Wisconsin's policy of funding student group speech, except three categories: worship, proselytizing, and religious instruction. Although the University funded several Badger Catholic programs that did not fall into these three categories, the University declined to fund some proposed programs that it said did. For example, the University declined to fund a proposed mentoring program that entails meetings between students and "one of the spiritual directors for spiritual mentoring/counseling and to talk about anything they wanted for a half-hour." The spiritual directors included nuns and priests for prayer, if requested by the student. Another proposed program was a four-day summer leadership retreat, which included three masses and four communal prayer sessions.
The judges split over whether the University's policy constituted unconstitutional viewpoint discrimination.
The Supreme Court recently affirmed and explained its approach to public forums in Christian Legal Society v. Martinez:
[G]overnmental entities create designated public forums when "government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose"; speech restrictions in such a forum "are subject to the same strict scrutiny as restrictions in a traditional public forum." . . . [G]overnmental entities establish limited public forums by opening property "limited to use by certain groups or dedicated solely to the discussion of certain subjects." As noted in text, "[i]n such a forum, a governmental entity may impose restrictions on speech that are reasonable and viewpoint-neutral."
Op. at 12, n. 11 (citations omitted).
For Judge Easterbrook, writing for himself and Judge Evans, the policy constituted viewpoint discrimination. As to the counseling program, for example, he wrote: "But having decided that counseling programs are within the scope of the activity fee, the University cannot exclude those that offer prayer as one means of relieving the anxiety that many students experience." Judge Easterbrook wrote that the University would have a hard time dealing with requests from groups like Quakers, for whom discussion leading to consensus is a religious exercise--ed: but is it prayer, proselytizing, or or instruction?--or religions that do not distinguish between religion and daily life.
For Judge Williams in dissent, the University established a limited public forum, and its policy was merely reasonable content discrimination, and not unconstitutional viewpoint discrimination. Judge Williams wrote that the policy excludes the content of worship, proselytizing, and religious instruction, but not religious viewpoints outside those areas (as evidenced by the University's funding of Badger Catholic programs outside those areas). To illustrate the viewpoint-neutral and secular character of the policy, Judge Williams wrote the University could also decline to fund activity like "praying for the Yankees"--secular "prayer" that's based on the content (the prayer) and not the viewpoint (pro-Yankees).
Judge Williams also highlighted the policy's feature of allowing the student group to identify its own activity. In other words, Badger Catholic may well have received funding if it simply described its counseling program and retreat in secular terms--or even in terms that didn't include prayer, proselytizing, or religious instruction.
Judge Williams highlighted another problem:
The panel reaches its conclusion that the University is engaging in viewpoint discrimination by stating that purely religious activities have "little meaning on their own" and cannot be meaningfully distinguished from the categories of "dialog, discussion or debate from a religious perspective" funded by the University. This conclusion degrades religion and the practices of religion. If religion, and the practice of one's religion, can be described as merely dialog or debate from a religious perspective, what work does the Free Exercise Clause do?
Op. at 20-21 (citations omitted).
The Supreme Court's recent ruling in Christian Legal Society did little to clarify the distinction between content discrimination and viewpoint discrimination, despite Judge Easterbrook's claim that the ruling dictated his own conclusion here. The competing opinions in Badger Catholic illustrate the problem: Any content-based discrimination can be viewpoint discrimination by discussing the content from a particular viewpoint--here, e.g., by proselytizing (perhaps the most plausibly content-based classification among the three in the policy) from a religious viewpoint. This is not a new problem, and nothing in Christian Legal Society (or Badger Catholic) solves it.
Even so, Badger Catholic is perhaps a poor illustration of the problem. In fact, few, if any, groups are going to seek funding for "praying for the Yankees," much less secular religious instructing. In other words, the policy is likely, if not certain, to exclude only religious groups. (On the other hand, religious groups well qualify for funding based on their non-prayer, non-proselytizing, and non-religious instruction activities.)
September 2, 2010
Eavesdropping on Police?
The American Civil Liberties Union of Illinois yesterday filed suit in federal court against Cook County State's Attorney Anita Alvarez seeking to enjoin enforcement of the state's eavesdropping law against the ACLU program to record statements of police officers. The complaint:
[T]he ACLU intends to undertake a program of monitoring police activity in public places by means including common audio/video recording devices. Specifically, the ACLU intends to audio record police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful (hereinafter "the ACLU program"). Where appropriate, the ACLU intends to disseminate such recordings to the public, and also to use these recordings to petition the government for redress of grievances through its advocacy program.
The [eavesdropping law] makes audio recording police officers in these circumstances a felony. Due to reasonable fear of arrest and prosecution, the ACLU is restrained from engaging in this conduct.
Complaint at paragraphs 3 and 4.
The eavesdropping law provides that "[a] person commits eavesdropping when he . . . [k]nowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation . . . unless he does so . . . with the consent of all of the parties to such conversation . . . ." 720 ILCS 5/14-2(a)(1)(A).
The complaint charges that application of the eavesdropping law violates the Free Speech Clause, the Petition Clause, and the Free Press Clause of the First Amendment. "This First Amendment right to gather, receive, and record information includes the right to audio record police officers in the circumstances described herein." Paragraph 10.
The complaint also alleges that at least four State's Attorneys, including Alvarez, are prosecuting individuals under the law for recording police officers conducting their public duties in public places.
The allegations recall the case of Anthony Graber, the Maryland motorcyclist who recorded his stop by a plain-clothes state trooper last spring and posted it to YouTube. The trooper obtained an arrest warrant charging Graber with violation of the state's wiretap law. State police seized Graber's computers and hard-drives and his videocamera. The Harford County State's Attorney obtained a grand jury indictment. Here's a local newsclip with excerpts from Graber's recording:
September 1, 2010
Petition to Mandate California Governor File an Appeal in Perry v. Schwarzenegger (Proposition 8) Decision
UPDATE: THE PETITION HAS BEEN DENIED. Brief Order here.
The possibility that the "proponents" of Proposition 8 who participated in the trial but may nevertheless lack standing to appeal has provoked a petition in state court to require the Governor or the Attorney General to appeal.
The petition and supporting memorandum in Beckley v. Schwarzenegger, filed in a California state appellate court, seeks an alternative writ of mandamus to compel Governor Schwarzenegger (pictured right) and State Attorney General Jerry Brown to file a notice of appeal by the deadline of September 11, 2010.
The petition argues that under state law and the state constitution, the defendants have a duty to defend Proposition 8. The petition argues that defending a law challenged on the basis of its constitutionality is required, unlike the decision whether or not to enforce a law. The petition also contends that filing a notice of appeal is a "ministerial" duty that cannot be evaded and is subject to a writ of mandamus.
The memorandum argues that the failure to perform the "minimal acts necessary" to ensure jurisdiction in the Ninth Circuit Court of Appeals is tantamount to a "constructive pocket veto" of a constitutional amendment, which "does violence to the State's constitutional form of government." This, the petition alleges, is "taking on a power which violates the social contract between the people and the governed, memorialized in the Constitution." (Petition and Memo, at 27).
Are "Ladies' Nights" - - - when a bar or nightspot offers women lower rates than men - - - unconstitutional as a violation of equal protection?
To even consider that issue, the threshold of state action has to be satisfied. In an opinion issued today, the Second Circuit easily concluded that there is no state action. The per curiam opinion in Hollander v. Copacabana applied the Lugar test, from Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982). Additionally, the panel found that the holding in Moose Lodge v. Irvis, 407 U.S. 163 (1972), in which the Court found that there was no state action by Moose Lodge despite the existence of a pervasive regulatory scheme governing the Lodge's liquor license, directly refuted the plaintiff's claim.
As the panel noted, the plaintiff has attributed these pernicious “Ladies’ Nights" to "40 years of lobbying and intimidation, [by] the special interest group called ‘Feminism’ [which] has succeeded in creating a customary practice. . . of invidious discrimination of men.” This same plaintiff, an attorney proceeding pro se, who has previously sued Columbia University's Institute for Research and Gender at Columbia University, argued not only that he had standing but that feminism was a religion, claims rejected by the federal court; the private status of Columbia University would also raise a state action barrier.[image via]
RR (H/T Nate Teadwell)
Federalism, Criminal Law and Immigration Conference
Karla McKanders (pictured left), University of Tennessee College of Law, and Jennifer Chacon (pictured right), University California Irvine School of Law, are among the speakers at the November 5, 2010 Symposium on Federalism to be held at Loyola Law New Orleans.
Bill Ong Hing (pictured below) University of San Francisco will deliver the keynote.
More information here.
August 31, 2010
Sotomayor on Berghuis v. Thompkins
Speaking at University of Denver College of Law last week, Justice Sotomayor responded to a law student's query about the Court's decision this past June in Berghuis v. Thompkins, in which she authored a dissenting opinion, joined by Justices Ginsburg, Stevens, and Breyer.
Sotomayor answers that she does not believe that the Court is "eroding Miranda," and discusses advice from Justice Souter about interpreting disagreements amongst the Court.
The C-Span video is available here; the question starts at approximately 14:00.
August 30, 2010
ACLU, CCR Sue to Stop Administration's Targeted Killings
The ACLU and the Center for Constitutional Rights yesterday filed suit in federal court in the District of Columbia to stop the administration's targeted killing of Anwar al-Aulaqi, a U.S. citizen living in Yemen and allegedly plotting terrorism against the U.S. (we think, although the government hasn't said precisely why he's targeted). The complaint, brought by al-Aulaqi's father on his behalf, seeks a declaration that the targeting is unconstitutional; it also seeks a permanent injunction prohibiting the government from killing al-Aulaqi unless he presents a concrete, specific, and imminent threat to life or physical safety and no lesser force will do. The groups also filed for a preliminary injunction in which, in their argument on "likelihood of success," they lay out their legal case. We last posted on the case when the groups received their license to sue from the Treasury Department.
The groups argue that the targeted, extra-judicial killing violates the Fourth and Fifth Amendments, unless the target poses an imminent threat of death or serious physical injury, and unless lethal force is the last resort. They also argue that the targeted killing violates international customary law and treaty obligations, which carry the same requirements.
The plaintiff's arguments so far hinge on the assumption that the targeted killings are outside the context of an armed conflict--that the targeted killing of a U.S. citizen living in Yemen, a country with which the U.S. is not at war, is not subject to the laws of war.
But as best we can reckon, the government justifies its targeted killing program as part of the conflict with al Qaeda, the Taliban, and associated forces. Harold Koh, the State Department Legal Adviser, said as much in his speech to the American Society of International Law last spring. Koh argued that the program is justified as self-defense under the international law of war and Congress's 2001 Authorization for Use of Military Force. According to Koh, the law of war allows extra-judicial, targeted killings of individuals planning attacks against the U.S. under certain circumstances, and it does not require the U.S. to provide Fourth and Fifth Amendment processes to those belligerents before killing them. We critique Koh's analysis here.
If this turns out to be the government's legal defense, the central first question in the case will be: Is the targeted killing of al-Aulaqi part of the government's conflict with al Qaeda, the Tablian, and associated forces? The answer to the question will give us an important data point in plotting the parameters of the "war on terror" and the government's authority to prosecute that war.
Koh made another comment in the speech that may give a partial preview of the government's defense in the al-Aulaqi case: He said that he couldn't comment publicly on much of the targeted killing program. Taken together with the administration's past practice, this statement may suggest a claim, or even an entire defense, based on the State Secrets Privilege--a troubling possibility.
State Constitutionalism Conference at Penn State
Registration and more information here.