June 13, 2011
Equally Divided Court Affirms Flores-Villar: Gender Differentials in Immigration Statutes Remain Constitutional
With Justice Kagan's recusal, what might have been a 5-4 decision finding the statute violated equal protection, the decision is instead a 4-4 split and thus the Ninth Circuit's opinion upholding the statute is affirmed.
The "opinion" is a simple recitation of that state of affairs:
The judgment is affirmed by an equally divided Court.
JUSTICE KAGAN took no part in the consideration or
decision of this case.
The gendered differential imposed by the statute at issue in Flores-Villar is the requirement that a citizen father must have resided in the United States for at least five years after his fourteenth birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship.
In the case of Flores-Villar, INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth, it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.
The Ninth Circuit upheld the statutory scheme, holding that avoiding statelessness, and assuring a link between an unwed citizen father, and this country, to a child born out of wedlock abroad who is to be a citizen, are important interests, and that the means chosen substantially further the objectives. The Ninth circuit stated, "Though the fit is not perfect, it is sufficiently persuasive in light of the virtually plenary power that Congress has to legislate in the area of immigration and citizenship.”
Flores-Villar might have clarified Nguyen v. INS, 533 U.S. 53 (2001) which upheld gender discrimination in citizenship statute because it had a biological basis. Clearly, the statute in Flores-Villar had no such basis. We discussed this when certorari was granted.
However, oral argument most of the discussion concerned the remedy rather than equal protection doctrine.
[image: Frederick R. Spencer, Family Group, circa 1840, Brooklyn Museum, via]
June 12, 2011
Turkey's Election, Constitution
Turkish Prime Minister Recep Tayyip Erdogan's ruling Justice and Development party (AKP) won nearly 50% of votes in Sunday's election, giving the party 325 seats in Parliament. The Guardian reports here.
One of the first orders of business will be to rewrite the Constitution.
But the AKP's take in the election--less than the super-majority needed to pass amendments to the Constitution or to submit them to referendum--means that the party alone cannot muscle through changes to the Constitution. (See Article 175 for amendment procedures and requirements.)
Turkey's Constitution is in need of revision. Its current Constitution, written in 1982 (but amended here and there since), has not kept pace with the country's social, economic, and political developments. A referendum last fall on amendments to 26 articles of the Constitution, which passed with 58% of the vote, was seen as a signal that the country is ready for comprehensive constitutional change.
For more on background, check out Steven Cook's blog at the Council on Foreign Relations and Sinan Ulgen's commentary at the Carnegie Endowment for International Peace.
Sunday School: Second Circuit Upholds Ban on Use of School Property for Religious Service
Katherine Stewart's op-ed in the NYT urges New York City to permanently ban churches from using schools for Sunday religious services. Stewart describes her own experiences, including her attendance at a church service at her daughter's school in Manhattan.
I could go on about why my daughter’s photo should not be made available for acts of worship, or why my P.T.A. donations should not be used to supply furniture for a religious group that thinks I am bound for hell, or why in a city blessed with an uncountable number of faiths it’s foolish to get schools tangled up in religion. But maybe it’s just that I imagine that that big red door is about education for all, not salvation for a few. Sometimes a building is more than a building.
As Stewart notes, earlier this month the Second Circuit upheld a Board of Education rule that prohibits outside groups from using school facilities after hours for “religious worship services.” In a split panel opinion in Bronx Household of Faith v. Board of Education, the court held that a "religious service" is an activity not a belief and therefore there is not viewpoint discrimination under the speech clause, and that avoiding Establishment Clause problems supports the content-based discrimination.
Interestingly, the "Sunday" use of public schools is also pertinent. As the court observed:
the fact that school facilities are principally available for public use on Sundays results in an unintended bias in favor of Christian religions, which prescribe Sunday as the principal day for worship services. Jews and Muslims generally cannot use school facilities for their services because the facilities are often unavailable on the days that their religions principally prescribe for services. At least one request to hold Jewish services (in a school building used for Christian services on Sundays) was denied because the building was unavailable on Saturdays. This contributes to a perception of public schools as Christian churches, but not synagogues or mosques.
As Howard Friedman over at Religion Clause notes, this is fourth time the Second Circuit has been "presented with the dispute involving attempts by Bronx Household of Faith to use school space for its Sunday worship services."
It is likely not to be the last.
Shakespeare for Lawyers: Yoshino on Justice and Elizabethan Drama
ConLawProf Kenji Yoshino's recent book, A Thousand Times More Fair: What Shakespeare's Plays Teach Us About Justice, is a delectable addition for ConLaw summer reading lists.
As the subtitle indicates, Yoshino not only discusses a select group of Shakespeare's plays, but then connects them to our contemporary notions of justice and to current events.
Here's a brief snippet, courtesy NYU Law, of Yoshino discussing one of Shakespeare's less popular dramas, Titus Andronicus: (click to start)
In a review, Eric Posner criticizes the book for trying - - - and failing - - - to illuminate current events through Shakespeare, but I suspect that many readers will disagree. Yoshino's opens Shakespearean texts to contemporary meanings, making important connections for current constitutional law debates.
It seems summer would be much more rewarding if one eshewed the "con law" bestsellers in favor of Shakespeare in the park (or on the beach) with Yoshino's book.
The Fundamental Holmes
After reading Heyman on Holmes as Mr. Hyde, one may be in need of a terrific primary source for Holmes' views on free speech. Look no further than The Fundamental Holmes: A Free Speech Chronicle and Reader – Selections from the Opinions, Books, Articles, Speeches, Letters and Other Writings by and about Oliver Wendell Holmes, Jr., edited by Ronald K. L. Collins.
Paul Weizer's review in Law & Politics Book Review observes:
The main aim of this book is to explore the life of Holmes and the events which led to his free speech jurisprudence. This is done through a careful examination of the personal correspondence, public speeches and judicial opinions of Holmes. This book is billed as the first complete collection of works by Justice Holmes on matters related to free speech. However, it is more than just that. By providing letters and speeches, in addition to the traditional judicial opinions found elsewhere, Collins helps to provide a sense of the man and a view of the Justice.
Weizer does fault the book for having commentary "so thorough" that "often times it is unnecessary to read" the actual passages from Holmes. Weizer also wonders about the intended audience for the book. But for scholars citing Holmes' opinions, the book seems an invaluable resource for further contextualizations of the opinions and access to other primary sources.