Friday, July 22, 2011

Obama on DADT: Repeal

Today, the White House, Office of the Press Secretary, issued the following "Statement by the President on Certification of Repeal of Don't Ask, Don't Tel"

Today, we have taken the final major step toward ending the discriminatory ‘Don’t Ask, Don’t Tell’ law that undermines our military readiness and violates American principles of fairness and equality.  In accordance with the legislation that I signed into law last December, I have certified and notified Congress that the requirements for repeal have been met.  ‘Don’t Ask, Don’t Tell’ will end, once and for all, in 60 days—on September 20, 2011. 

As Commander in Chief, I have always been confident that our dedicated men and women in uniform would transition to a new policy in an orderly manner that preserves unit cohesion, recruitment, retention and military effectiveness.  Today’s action follows extensive training of our military personnel and certification by Secretary Panetta and Admiral Mullen that our military is ready for repeal.  As of September 20th, service members will no longer be forced to hide who they are in order to serve our country.  Our military will no longer be deprived of the talents and skills of patriotic Americans just because they happen to be gay or lesbian.

I want to commend our civilian and military leadership for moving forward in the careful and deliberate manner that this change requires, especially with our nation at war.  I want to thank all our men and women in uniform, including those who are gay or lesbian, for their professionalism and patriotism during this transition.  Every American can be proud that our extraordinary troops and their families, like earlier generations that have adapted to other changes, will only grow stronger and remain the best fighting force in the world and a reflection of the values of justice and equality that the define us as Americans.

The brief certification letter is here.


July 22, 2011 in Executive Authority, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, July 21, 2011

Voter ID Commentary

Stephen Colbert gave his take on proliferating voter ID laws on last night's Colbert Report.  Several states have adopted voter ID laws in order to cut down on voter fraud, or to erect a barrier to voting, depending on who you talk to.  Evidence of voter fraud at the polls is scant, though, as Colbert correctly reports:

The Colbert Report Mon - Thurs 11:30pm / 10:30c
Voter ID Laws
Colbert Report Full Episodes Political Humor & Satire Blog Video Archive


The Supreme Court upheld Indiana's voter ID law in 2008 in Crawford v. Marion County.  The case resulted in three opinions, with the Court spliting 3-3-3.  Justice Stevens's opinion, joined by Chief Justice Roberts and Justice Kennedy, concluded that Indiana's law was an even-handed restriction on voting, designed to protect the integrity and reliability of the electoral process.  As such, the plaintiffs, who lodged a facial challenge, had to show that they were burdened.  According to Justice Stevens, they failed.  Justice Scalia, joined by Justices Thomas and Alito, were even more deferential to the state.  Justice Souter wrote a dissent, joined by Justices Ginsburg and Breyer.  (The Indiana Supreme Court later ruled that the voter ID law violated the Equal Privileges and Immunities Clause of the state constitution.)

The plaintiffs in Crawford had two principal problems: their evidence of burden was relatively weak; and they lodged a facial challenge.  Based on Justice Stevens's opinion, if they litigated the case differently, they might have picked up Justice Stevens, and maybe even Chief Justice Roberts and Justice Kennedy.

The Court's approach in Crawford stands in contrast to its approach in another political rights case this Term, Arizona Free Enterprise Club, in which a sharply divided Court overturned Arizona's public campaign financing scheme under the First Amendment.  The doctrines in the two cases are different, to be sure, but the Court's different treatment of the states' efforts to guard against malfunctions in politics is striking.  In Crawford, the Court was highly deferential to Indiana's interest in protecting against voter fraud at the polls (despite the scant evidence in the record) and suspicious of the plaintiffs' (admittedly not terribly well supported) claims that the ID requirement was a burden.  But in Arizona Free Enterprise Club, the Court reversed: it was highly suspicious of Arizona's stated interest in reducing corruption and highly deferential to the plaintiffs' claim that the campaign finance scheme burdened their free speech rights (despite scant evidence in the record).  In short, the plaintiffs' evidence of burden was greater in Crawford, and the state's evidence supporting its interest was greater in Arizona Free Enterprise Club, but the Court credited the state's interest over the plaintiffs' burden in Crawford and the plaintiffs' evidence over the state's interest in Arizona Free Enterprise.

The Court's approaches in the two cases, which both involve key political rights, seem at odds.  The difference is (maybe) explained by the different doctrines involved in the cases.  The "even handed" restriction in Crawford triggered a balancing test, relatively deferential to the state; but the speech-burdening campaign finance scheme in Arizona Free Enterprise Club triggered strict scrutiny, not at all deferential to the state.  The different deference required by the different tests thus explains why the Court defered in two different ways.

But on the other hand, the fact that the Court analyzed these cases under these levels of scrutiny wasn't at all inevitable.  The Court in Arizona Free Enterprise Club could have applied a more deferential test--"closely drawn" to achieve "sufficently important interests," the standard that the Court uses for less speech-burdening campaign finance laws (like reporting requirements).  The state argued for this in that case.  Similarly the Court could have applied a more rigorous standard in Crawford--the strict scrutiny standard that the Court has applied to substantial burdens to voting, as in a poll tax (Harper) , e.g.  The plaintiffs argued for that in that case.  (Thus the Court might have applied greater scrutiny to the voter ID law in Crawford than to the campaign finance scheme in Arizona Free Enterprise Club!)  If the Court's deference in these cases seems inconsistent, remembering that the level of scrutiny itself was disputed in both of these cases may only reinforce that sense.  All things considered, the Court's approaches in these two cases seem at odds, to say the least--and together put a heavy thumb on the political scale in favor of those with resources (and against those without).


July 21, 2011 in Campaign Finance, Cases and Case Materials, Fundamental Rights, News, Speech | Permalink | Comments (3) | TrackBack (0)

Wednesday, July 20, 2011

Florida Federal Court Rules Ten Commandments Monument Violates Establishment Clause

Senior District Judge Maurice M. Paul (N.D. Fla.) ruled last week that a Ten Commandments monument displayed just outside the Dixie County Courthouse is government speech and violates the Establishment Clause.  Judge Paul ordered Dixie County to remove the monument within 30 days.

The case involves a privately funded monument, over five-feet tall and weighing six tons, that displays the Ten Commandments and text reading "LOVE GOD AND KEEP HIS COMMANDMENTS."  Here's a picture, courtesy of the ACLU of Florida:


The private funder secured County Commission approval before initiating the project.  After the ACLU sued, the Commission issued its "Monument Placement Guidelines," which purported to establish a limited public forum on the courthouse steps, where the monument is located.

The county government thus argued that the monument was private speech, protected under the First Amendment Speech Clause.  Judge Paul didn't buy it.  He ruled that the monument is government speech.  He noted that while the monument is not tethered and contains the name of the private funder (with an indication that the monument belongs to the private funder), it nevertheless has all the appearances of permanence; and its location "make[s] it clear to all reasonable observers that Dixie County chooses to be associated with the message being conveyed."  Op. at 10.  (Judge Paul compared the case to the OT 08 case, Pleasant Grove City v. Summum, in which the Court ruled that the placement of a privately-funded, permanent monument in a government park, alongside other privately-funded monuments, is government speech.  If so there, so much more so here--a permanent monument on the courthouse steps.)  To get a sense, take a look at this picture, also courtesy of the ACLU of Florida:


Judge Paul then ruled that the monument violated the Establishment Clause:

As noted previously, permanent displays carry the indicia of government speech.  This strongly implies endorsement of the message being conveyed.  However, beyond the mere permanence of the monument, the context of the display establishes Dixie County's endorsement of its religious message.  The monument is five-feet tall, made of six tons of granite, and sits alone at the center of the top of the steps in front of the county courthouse that houses every significant local government office.  "No viewer could reasonably think that it occupies this location without the support and approval of the government."  By permitting the display of the monument in this setting, "the county sends an unmistakable message that it supports and promotes" the religious message that appears on it.

Op. at 12 (citations to County of Allegheny v. ACLU omitted).

Two terms ago, the Court ruled in Pleasant Grove that a privately-funded, permanent monument in a public park, alongside several other privately-funded monuments, was government speech (and not a public forum).  As such, the government's rejection of a privately-funded monument was not subject to scrutiny under the Free Speech Clause.  But it would have been subject to scrutiny under the Establishment Clause (if the plaintiff-respondent raised it).  (That doesn't mean the plaintiff-respondent would have won, just that the government's rejection of its monument would have been subject to Establishment Clause analysis.) 

Justice Souter noted in concurrence that the play between the government speech doctrine and the Establishment Clause hadn't been worked out.  He worried that a government, in order to dodge Establishment Clause problems, would wisely accept more monuments whenever an accepted monument had a religious character--"safety in numbers"--but that this strategy would in turn would "make it less intuitively obvious that the government is speaking in its own right simply by maintaining the monuments."  The result: The government could unwittingly create a speech forum, diluting its government speech defense and forcing it, under the Free Speech Clause, to accept monuments from all comers, including those that don't represent its views.  If so, Justice Souter argued,

the government could well argue, as a development of government speech doctrine, that when it expresses its own views, it is free of the Establishment Clause's stricture against discriminating among religious sects or groups.  Under this view of the relationship between the two doctrines, it would be easy for a government to favor some private religious speakers over others by its choice of monuments to accept.

Whether that view turns out to be sound is more than I can say at this point.  It is simply unclear how the relatively new category of government speech will relate to the more traditional categories of Establishment Clause analysis, and this case is not an occasion to speculate.

Souter Concurrence, at 3.  (For more on Justice Souter's worry, check out Prof. Mary Jean Dolan's (John Marshall) recently posted piece The Cross National Memorial: At the Intersection of Speech and Religion.)

If Pleasant Grove wasn't an occasion to explore the play between the government speech doctrine and the Establishment Clause (because the latter wasn't raised), this case isn't a likely candidate to explore it either, but for a different reason: There's only one monument.  This is a straight-forward Establishment Clause case and not one that raises issues at the intersection of these two doctrines.


July 20, 2011 in Cases and Case Materials, Establishment Clause, Fundamental Rights, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Viewpoint Discrimination: Second Circuit Opinion on the Moffat Lawn

Moffat_Library,_Washingtonville,_NY In a brief opinion today, the Second Circuit upheld summary judgment against the Town of Blooming Grove and Village of Washingtonville, New York.  The problem?   The Moffat Lawn, known familiarly as The Lawn. 

 As the court states, the "Town and Village opened the Lawn for expression on the subjects of war and
military service when they permitted speakers from private groups, including the Veterans of Foreign Wars (“VFW”), to use it."   However, when the plaintiff Alexandra Coe wanted to hold a peace rally on The Lawn, the Town demanded a one million dollar liability insurance policy, a requirement that had not been imposed on the VFW.

The Town and Village passed various regulations declaring that The Lawn was not a public forum.  The court was not impressed, because even if the forum was a limited public forum, the government could not engage in viewpoint discrimination. 

The Second Circuit also rejected the government's attempt to rely on Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), by arguing that the VFW, but not Ms. Coe, conveyed the government's message:  "we find no evidence that the Town or Village authorized, approved, controlled, or ratified the VFW’s speech." 


[The case was litigated by a CUNY School of Law alum;
Congratulations Stephen Bergstein]
[image: Moffat Library, Washingtonville, NY, via]

July 20, 2011 in Cases and Case Materials, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 19, 2011

Who we are (not)

We are

Steven D. Schwinn {SDS}, a law professor at John Marshall Law School (Chicago)


Ruthann Robson {RR}, a law professor at City University of New York School of Law.


We are not

Michael McKinley of 9 Marks Blog,

although he has linked to this blog stating "although not a lawyer" he runs "a constitutional law blog under a pseudonym."


Perhaps Mr. McKinley is just mistaken?

{update: the statement and link have been removed from the 9marks blog}



July 19, 2011 in Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Not a "True Threat": The Ninth Circuit Holds Anonymous Threats to Obama Protected

The line between "true threats" and sort-of-threatening-or-offensive-statements is the line between criminality and First Amendment protection. 

In an opinion today in United States v. Bagdasarian, the Ninth Circuit reversed Bagdasarian's conviction, holding that his statements did not rise to the constitutionally required level of "true threats." At issue was U.S.C. § 879(a)(3), providing it is a felony to threaten to kill or do bodily harm to a major presidential candidate. 

Judge Stephen Reinhardt, writing for the panel and joined by Chief Judge Alex Kozinski, over a partial dissent by Judge Kim McLane Wardlaw, begins by discussing the context:

 "The election of our first black President produced a campaign with vitriolic personal attacks and, ultimately, sentiments of national pride and good will. The latter was shortlived on the part of some, politicians and non-politicians alike, and the vitriol continued as President Obama’s term of office commenced."

It soon becomes clear why the opinion begins this way, as the statements of Walter Bagdasarian, who the opinion characterizes as "an especially unpleasant fellow,"  are racist as well as violent.  Bagdasarian under the user name “californiaradial,” posted his statements on a Yahoo! Finance — American International Group message board, "an internet site on which members of the public could post messages concerning financial matters, AIG, and other hot topics of the day." 

The panel rejected the government's argument that Bagdasarian's anonymity contributed to the "true" quality of the threat.  "We grant that in some circumstances a speaker’s anonymity could influence a listener’s perception of danger," but here, "the financial message board to which he posted them is a non-violent discussion forum that would tend to blunt any perception that statements made there were serious expressions of intended violence."  

The panel also rejected the relevance of two other facts deemed important by the government.  First, one of Bagdasarian's statements referred to a "50 cal" and Bagdasarian did indeed possess .50 caliber weapons and ammunition in his home.  Second, he later sent an email that, while it did not mention Obama, did refer to a "50 cal" used on a car and included a video of junked cars being blown up.  The panel noted:

Nobody who read the message board postings, however, knew that he had a .50 caliber gun or that he would send the later emails. Neither of these facts could therefore, under an objective test, “have  bearing on whether [Bagdasarian’s] statements might reasonably be interpreted as a threat” by a reasonable person in the position of those who saw his postings on the AIG discussion board.

The panel very carefully discusses both the objective and subjective tests, making this opinion a terrific one for classroom use.  It would also be a great class exercise given Wardlaw's extensive dissent.

Intriguingly, while still in the first paragraph, Reinhardt's opinion invokes Scalia and American history, criticizing a 1995 dissenting opinion by Scalia, McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 382 (1995) (Scalia, J., dissenting), because it "uncharacteristically overlooked the experience of our Founding Fathers."  Reinhardt remedies this with several examples, including:

In the country’s first contested presidential election of 1800, supporters of Thomas Jefferson claimed that incumbent John Adams wanted to marry off his son to the daughter of King George III to create an American dynasty under British rule; Adams supporters called Jefferson “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.

Yet Reinhardt soon brings the discussion up to date: "Still, the 2008 presidential
election was unique in the combination of racial, religious, and ethnic bias that contributed to the extreme enmity expressed at various points during the campaign.  Much of this bias was misinformed because although the presidential candidate was indeed black, he was neither, as some insisted,
Muslim nor foreign born."  He also supports these statements with extensive footnotes.

Ninth Circuit

Reinhardt was quoted by the LA Times in a story yesterday about the high rate of reversal of the "liberal" Ninth Circuit (pictured above via) by the more conservative Supreme Court.  

Reinhardt said he didn't feel personally reprimanded [by Supreme Court reversals]  because the justices often employ strong language to express their disagreement, usually with one another.

"If anything, it's a compliment. I get treated like the others on the [Supreme] Court," he said in an interview with The [LA] Times.


July 19, 2011 in Cases and Case Materials, Current Affairs, Elections and Voting, First Amendment, History, Interpretation, News, Opinion Analysis, Race, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Republicans Continue to Demand Changes to CFPB

President Obama nominated former Ohio attorney general Richard Cordray on Monday to lead the Consumer Financial Protection Bureau.  But congressional Republicans continue to say they'll hold up any nomination until the nascent CFPB undergoes fundamental changes.  (They also object to Cordray, who, some say, has been too tough on banks and their lending practices.)  Under the Dodd-Frank Wall Street Reform and Consumer Protection Act passed last year, the Bureau is set to receive its full regulatory powers on Thursday, July 21.  But a lack of a confirmed leader will hamper its regulatory efforts.

Among the key changes that Republicans are demanding:

  • Replace the single Director with a Board.  Republicans object that the Bureau has just one Senate-confrimed appointment--the Director--and that the Director has too much regulatory power under the Act.  A board would diffuse power.
  • Take the CFPB's funding out from under the Federal Reserve and put it directly through the regular appropriations process.  Republicans say this will mean greater transparency and accountability for the Bureau.
  • Allow the Financial Stability Oversight Council to set aside or to stay any regulation issued by the CFPB under certain circumstances.  This would mean that another body has veto power over the CFPB's actions.

While the changes might lead to a Bureau that is more answerable to Congress, they would also undercut the purposes of the Bureau: to ensure that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive.

The Republicans' tactic--holding up any nomination until the Bureau changes fundamentally--is an effective and fully constitutional check on the administration (even if it seems to be refighting a lost legislative battle in Appointment Clause clothes).  But it can only go so far.  President Obama has said that he will fight any changes to the CFPB.  The Bureau is set to receive its full regulatory powers on Thursday.  And President Obama could always make a recess appointment in August, the next scheduled congressional break--a move advocated by some Democrats.  In other words, the Republicans' tactic may hold up the work of the Bureau, but it (alone) can't change it. 


July 19, 2011 in Appointment and Removal Powers, Congressional Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Parliament's Questioning in Murdoch Scandal Today

The BBC has a terrific and handy "cheat sheet" of the MPs on the House of Commons Culture, Media and Sport Committee who will be questioning Rupert Murdoch (pictured below via), James Murdoch, and Rebekah Brooks today about the scandal that has rocked Great Britain.  The report also has a list of possible questions, mostly of the who knew what when variety.


Live coverage from BBC here.

It is yet unknown whether or not the Murdoch press empire in the United States (including the Wall Street Journal, the New York Post, and Fox News) will be implicated.  However, US ConLawProfs interested in media issues will certainly want to pay attention to today's hearings, which will presumably be the first of many.


July 19, 2011 in Current Affairs, News | Permalink | Comments (1) | TrackBack (0)

Monday, July 18, 2011

Same-Sex Marriage in NY & the Religious Exemption: Alliance Defense Fund's Memo to Town Clerks

The New York Same-Sex Marriage statute, which becomes effective July 24, contains a religious exemption, although not for town clerks as we've previously discussed. 

But the Alliance Defense Fund has written a Memo to town clerks with the authority to issue marriage licenses entitled "Your Right to Request An Accommodation of Your Sincerely Held Religious Beliefs Concerning Issuance of Marriage Licenses to Same- Sex Couples."

The Memo does not rely on the statute, or on the First Amendment, but on Executive Law § 296, the Human Rights Law, which includes protection based upon religion.  

Town clerk

Section 10 provides: "It shall be an unlawful discriminatory practice for any employer, or an employee or agent thereof, to impose upon a person as a condition of obtaining or retaining employment, including opportunities for promotion, advancement or transfers, any terms or conditions that would require such person to violate or forego a sincerely held practice of his or her religion."

The example provided is observance of holy days.  In this case, the clerk would have to connect issuing a marriage license to a "sincerely held practice of his or her religion."  The law contains an exemption for the employer's undue hardship, which again is largely focused on time off for religious observance.

The law also has an exemption for religious institutions and organizations; they are allowed to discriminate on the basis if religion under the Human Rights Law.

The Alliance Defense Fund Memo includes a "sample letter" that a clerk could send to the mayor and city council requesting an accommodation.


July 18, 2011 in Current Affairs, Family, First Amendment, Religion, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (3) | TrackBack (0)

Ninth Circuit and DADT: The Continuing Saga

The staus of Don't Ask, Don't Tell as of today?


The latest Order from the Ninth Circuit states:

In order to provide this court with an opportunity to consider fully the issues presented in light of these previously undisclosed facts, the stay entered November 1, 2010, is reinstated temporarily in all respects except one. The district court’s judgment shall continue in effect insofar as it enjoins appellants from investigating,
penalizing, or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy.

On July 11, the court gave the government ten days to state its intentions regarding the litigation in Log Cabin Republicans v.  United States, in which the court had lifted the stay of the injunction. 

In the most recent Order, the court notes "Appellants acknowledge that they did not previously inform the court of the full extent of the implementation of the Repeal Act."

However, the court is clear that the military continues to be enjoined from "investigating, penalizing, or discharging" under the DADT policy.



July 18, 2011 in Current Affairs, Fundamental Rights, News, Sexuality | Permalink | Comments (1) | TrackBack (0)

The Balanced Budget Amendment

In a largely symbolic effort amid continuing budget talks, Congress this week will debate a balanced budget amendment that would require a balanced budget every fiscal year, limit federal spending to 18 percent of GDP, and require a super-majority in Congress to increase taxes, raise the debt limit, or run a deficit.  While the measure's chances of success are slim, at best, proponents and opponents have debated whether such an amendment would be in tension with the text, structure, and history of the rest of the Constitution.

Republican Senator Mike Lee, a driving force behind balanced budget amendment efforts in the Senate, made his case earlier this spring in this op-ed in the Washington Post.  Lee writes,

First, a balanced-budget requirement will ensure we do not continue to drive our country further into debt by trying to do all things for all people. . . .  Second, balancing our budget today will avoid even tougher choices tomorrow. . . .  Finally, a structural budget restraint is necessary to overcome Congress's insatiable appetite to spend. . . .  A balanced-budget amendment is the only way to ensure that Congress acts in the best interest of the country regardless of who is in power.

Doug Kendall of the Constitutional Accountability Center and Dahlia Lithwick argued Friday at Slate that a balanced budget amendment is in direct conflict with the text, history, and structure of the Constitution and our own practices:

It's fairly certain that George Washington and the other Founders gathered in Philadelphia in 1787 would be appalled by the Lee amendment.  It is not an accident that the first two enumerated powers the Constitution vests in Congress are the power "to lay and collect Taxes . . . to pay the Debts and provide for the comon Defense and general Welfare of the United States" and "to borrow money on the credit of the United States."  The Constitution's broad textual grant of power was a direct response to the Articles of Confederation, which had imposed crippling restrictions on Congress's power to borrow and tax.  These restrictions plagued the Revolutionary War effort and made a deep and lasting impression on Washington and other war veterans.  Lee and the other proponents of shrinking the federal government to restore freedom misapprehend that the Constitution recognized there would be no freedom without a strong federal government to promote it.

Kendall and Lithwick's Slate piece draws on an earlier article by David Gans and David McNamee of the CAC in the "Strange Brew" series at the CAC web-site.


July 18, 2011 in History, Interpretation, News | Permalink | Comments (1) | TrackBack (0)