Friday, November 5, 2010
Muneer Awad, Executive Director of the Council on American-Islamic Relations, filed for a temporary restraining order and preliminary injunction seeking to stop the State of Oklahoma from certifying state ballot question 755 and implementing the new anti-Sharia constitutional amendment. CAIR's press release is here.
The [Oklahoma courts], when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. . . .
The measure passed by 70% to 30% in Tuesday's election.
Awad and CAIR argue that the provision violates both the Establishment Clause (under the Lemon test) and the Free Exercise Clause (under either strict scrutiny or rational basis review). In short, they argue that the State's targeting of Sharia law will stigmatize Awad based on his faith and prevent him from enforcing his will (which references Sharia law) in Oklahoma state courts. As to the Establishment Clause, they argue that the measure violates all three parts of the Lemon test: that it does not have a secular purpose, that its primary effect advances and inhibits religion, and that it fosters an excessive government entanglement with religion. As to Free Exercise, they argue that the State doesn't even have a legitimate purpose in banning the use of Sharia law, except the bare desire to harm a politically unpopular group. This is not enough to sustain the measure against Awad's challenge. Cleburne v. Cleburne Living Center; Romer v. Evans.
November 5, 2010 in Comparative Constitutionalism, Courts and Judging, Elections and Voting, Establishment Clause, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Religion, State Constitutional Law, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)
Linda Greenhouse has a worth-reading column that begins by referencing the revelation of ConLawProf Larry Tribe's initial dismissal of Sotomayor in a letter to Obama but soon rises to an insightful analysis of Sotomayor's career as a Justice so far.
Greenhouse focuses on the Court's criminal docket, noting that so far Sotomayor "was second only to Justice Stevens in voting on the side of the criminal defendant." Of course, Sotomayor's dissent last term in Berghuis v. Thompkins merits a mention. And unspoken is the departure of Stevens, which presumably makes Sotomayor the most sympathetic Justice to claims by criminal defendants.
But it is Sotomayor's dissent from a denial of a certiorari grant - - - in the context of such dissents - - - that proves most interesting. Greenhouse contends that the Roberts Court has seen the revival of individual justices issuing dissenting opinions from the Court’s denials of certiorari, a practice that had shriveled under Rehnquist but which has been embraced by Roberts himself. Greenhouse highlights Sotomayor's dissent in Pitre v. Cain, a prisoner's pro se petition. While Sotomayor's dissent seems compelling, Greenhouse concludes it is the kind of case which the Court usually does not hear because it would simply correct the error of the Fifth Circuit and be dispensing "retail justice."
Lest this be interpreted as implying Sotomayor is a "retail Justice" herself, Greenhouse quickly compares Sotomayor's dissent to a dissent issued Monday by Alito, Roberts, and Scalia, from the denial of certiorari in Wong v. Smith, the grant of a habeas petition by the Ninth Circuit. The Court, the dissenters wrote, should hear the case to "correct the Ninth Circuit’s error."
"Error-correction to the left, error-correction to the right," Greenhouse writes, which is accurate Court-wise, if not reflective of a wider Left/Right politics in which describing Sotomayor, a former federal prosecutor, as "left" seems odd. But what is certainly true, as Greenhouse reminds us, is that ConLawProfs should be paying attention to those dissents from denial of certiorari.
Thursday, November 4, 2010
Who voted this week? Certainly not persons convicted of felonies who owe child support in Tennessee.
In a split-panel opinion issued by the Sixth Circuit in Johnson v. Bredesen, the court upheld Tennessee's felony disenfranchisement law. The statute disenfranchises persons convicted of felonies, allowing the right of suffrage to be restored upon receipt of a pardon, discharge from custody after serving the maximum sentence imposed, or final discharge by the relevant county, state, or federal authority. However, as the Sixth Circuit explains, the statute, "carves out two exceptions to re-enfranchisement eligibility":
(b) . . . a person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person has paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence[, and]
(c) . . . a person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person is current in all child support obligations.
The major arguments of the challengers is that these exceptions violate the Equal Protection Clause and the Twenty-Fourth Amendment, but they also argue the Ex Post Facto and Privileges or Immunities Clauses of the United States and Tennessee Constitutions.
On the equal protection claim, the majority applies rational basis, rejecting the contention that strict scrutiny should be the standard for reviewing a statute restricting the fundamental right to vote: "The state may, within the bounds of the Constitution, strip convicted felons of their voting rights," and thus having "lost their voting rights, Plaintiffs lack any fundamental interest to assert." Applying rational basis, the panelfound that "the state’s interests of encouraging payment of child support and compliance with court orders, and requiring felons to complete their entire sentences, including paying victim restitution, supply a rational basis for the challenged statutory provisions sufficient to pass constitutional muster."
On the Twenty-fourth Amendment claim, the majority concludes that the right to vote is not being abridged for "failure to pay any poll tax or other tax," reasoning again that the Tennessee statute "does not deny or abridge any rights; it only restores them."
In a lively and lengthy dissent, Circuit Judge Karen Nelson Moore argues that while Tennessee "may curtail a felon’s right to vote, or even forever deny it, but once a state enacts a process by which a felon may regain suffrage, that process must comport with the demands of the Constitution." She concludes that the statute violates the Equal Protection Clause of the U.S. Constitution and the Ex Post Facto Clause of the Tennessee Constitution, and believes that "the Plaintiffs have alleged sufficient factual matter to state a claim for relief under the Twenty-Fourth Amendment to the U.S. Constitution such that dismissal on the pleadings was improper."
Law students looking for a good journal note might consider this opinion. There is some solid analysis and trenchant writing in both the majority and dissent, and the linking of child support arrearages to voting raises a host of social issues.
[image from Cornell University Collection Political Americana via]
Wednesday, November 3, 2010
That's the question that participants will address at Loyola's (Chicago) Constitutional Law Colloquium this Friday and Saturday, November 5 and 6.
This first annual Loyola conference brings together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. Loyola Profs John Nowak, Alexander Tsesis, and Michael Zimmer put together a terrific program; this promises to be a wonderful event. Professor Lawrence Solum (Illinois) will speak at the lunch on Friday.
For more information, including presenters' biographies and abstracts, check out the Colloquium web-site.
Monday, November 1, 2010
The Supreme Court today granted cert. in Turner v. Price, a case from the South Carolina Supreme Court rejecting petitioner's claim that he had a constitutional right to counsel in a civil contempt proceeding.
Petitioner Michael Turner appeared in South Carolina family court in 2008 on a rule to show cause why he should not be held in contempt for failure to pay child support. (He owed nearly $6,000 and hadn't made a payment in 18 months.) He was not represented by counsel. The court found him in willful contempt of the child support order and sentenced him to twelve months in a detention center, "which sentence he could purge himself of and avoid by full payment of his child support arrearage."
The South Carolina Supreme Court rejected Turner's argument for court-appointed counsel under the Sixth and Fourteenth Amendments. The decision turned on Turner's ability to avoid the sentence altogether:
Here, the family court judge found Appellant in willful contempt of the support order and sentenced him to twelve months in a detention facility, stating, "He may purge himself of the contempt and avoid the sentence by having a zero balance on or before his release." This conditional sentence is a classic civil contempt sanction. Therefore, Appellant is not constitutionally entitled to appointment of counsel.
. . .
Because Appellant may avoid the sentence altogether by complying with the court's previous support order, he holds the keys to his cell door and is not subject to a permanent or unconditional loss of liberty.
The court acknowledged that it was adopting the minority position on the issue.
Remarkably, especially considering the federal constitutional claims, the court did not cite a single U.S. Supreme Court case. (It cited precious few cases at all, and no federal cases outside the footnotes.)
The U.S. Supreme Court directed the parties to brief a second issue in the case: whether the Court has jurisdiction to review the decision at all. (Turner served out his contempt sentence, and it's not clear that the state courts ruled on all his claims now before the Supreme Court.)
November 1, 2010 in Courts and Judging, Fourteenth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, Recent Cases, Reconstruction Era Amendments, Sixth Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Sunday, October 31, 2010
Steve Sanders has posted an interesting commentary on the amicus brief filed by thirteen states in Perry v. Schwarzenegger, the Proposition 8 case now in the Ninth Circuit, which we last discussed here.
Sanders points to the inconsistency in the arguments in this amicus brief with the appeal in Commonwealth of Massachusetts v. HHS, the DOMA case in which the district judge agreed that DOMA conflicts with the Massachusetts' Tenth Amendment reserved powers. He writes that these 13 states are "unlikely to link arms with Massachusetts," because given "the choice between a consistent position in favor of states' rights over marriage, or a consistent position against recognition of same-sex marriages by any level of government, it is predictable that they will choose the latter."
The Tenth Amendment argument in the Massachuetts DOMA case also poses consistency issues for those relying on the Tenth Amendment in the context of challenges to Arizona's immigration law, SB 1070.