Saturday, May 12, 2012

Saturday Evening Review: Julie Nice on the "Responsible Procreation" Argument in Same-Sex Marriage Constitutional Litigation

With President Obama making news this week proclaiming his personal support for same-sex marriage, after an extensive "evolution," it's a good time to take a look at scholarship on the constitutional arguments. 

Obama specifically mentioned same-sex couples "raising kids together."  But one of the more odd - - - at least on first review - - - arguments in support of state marriage being limited to opposite sex couples is that this is acceptable, but that opposite sex couples need more "encouragement" to marry.  This is the so-called "responsible procreation" state interest.  Perhaps it reached its most interesting articulation in the pronouncement of New York's highest court, an opinion subject to a skewering analysis - - - and fun read - - - in John Mitchell's  Chatting with the Lady in the Grocery Store about Hernandez V. Robles, the New York Same-Sex Marriage Case, available on ssrn.

ConLawProf Julie Nice (pictured below) has now elaborated this odd notion in The Descent of Responsible Procreation: A Genealogy of an Ideology, forthcoming in Loyola Los Angeles Law Review, draft available on ssrn.  With her usual scholarly integrity matched by innovative analysis, Nice "traces the genealogy of responsible procreation."

Julie NiceShe notes that same sex constitutional litigation has changed remarkably during the past several decades, with the amount of such litigation increasing substantially.  With state justifications eroding, especially since blatant discrimination has become more disfavored, defenders of state bans on same-sex marriage have primarily leaned on the responsible-procreation defense, which surmises that same-sex couples already procreate responsibly and that the rights and responsibilities of marriage should be limited to furthering the goal of encouraging more responsible procreation by heterosexuals.

Nice explains that the justification is rooted in religion.  It appeared as a justification of the federal Defense of Marriage Act.  State courts split on its constitutionality: the high court of Massachusetts found it to be “unpersuasive” while the New York court used it as a justification for a rejection of constitutional challenge to same-sex-marriage bans. 

And in Perry v. Brown, the district judge and the Ninth Circuit panel ruling on the constitutionality of California’s Proposition 8, rejected the responsible-procreation state interest. 

While the saga of Perry v. Brown is far from over, Nice predicts that the "responsible procreation" state interest is "on the wane."   She ultimately argues the emerging trend is that both executive officials and courts are rejecting the "responsible procreation" rationale and concluding that the same-sex-marriage ban is drawn, not to further a proper legislative end but to make same-sex couples and their children unequal to everyone else.  She contents that even conservative commentators defending the same-sex-marriage ban openly concede that it is drawn to disadvantage same-sex couples and to favor opposite-sex couples.

Thus, she concludes regardless of which level of scrutiny is applied, contemporary constitutional jurisprudence is quite clear that such an invidious ideology is not a legitimate basis for law.

An article worth reading that not only puts the same-sex marriage constitutional issues into perspective but also provides an excellent primer on equal protection and constitutional litigation.


May 12, 2012 in Equal Protection, Establishment Clause, Family, Federalism, Fourteenth Amendment, Religion, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Friday, May 11, 2012

Establishment Clause Challenge to Solemnization of Marriage Law in Indiana

Indiana, like most states, allows state officials, judges, and certain religious officials to "officiate" at marriage ceremonies, performing the legal requirement often called solemnization.  In popular understandings, this is the person who asks the question of the persons to be married which they must each answer something akin to "I do." 

Elen_ludvik7But who gets to officiate?  Generally, the persons are listed by statute.  Indiana Code 31-11-6 lists the persons authorized to solemnize marriages, as:
        (1) A member of the clergy of a religious organization (even if the cleric does not perform religious functions for an individual congregation), such as a minister of the gospel, a priest, a bishop, an archbishop, or a rabbi.
        (2) A judge.
        (3) A mayor, within the mayor's county.
        (4) A clerk or a clerk-treasurer of a city or town, within a county in which the city or town is located.
        (5) A clerk of the circuit court.
        (6) The Friends Church, in accordance with the rules of the Friends Church.
        (7) The German Baptists, in accordance with the rules of their society.
        (8) The Bahai faith, in accordance with the rules of the Bahai faith.
        (9) The Church of Jesus Christ of Latter Day Saints, in accordance with the rules of the Church of Jesus Christ of Latter Day Saints.
        (10) An imam of a masjid (mosque), in accordance with the rules of the religion of Islam.

The Center for Inquiry, a secular humanist group, has filed a complaint challenging the constitutionality of the section, based on its argument that it would like to perform secular weddings.  The complaint avers that secular ceremonies by state officials may not be desirable for some secular humanists: it would have "political overtones" and the official may not know the couple personally or share their values.  Such is alleged to be the case with the individual plaintiffs who have joined the Center for Inquiry.

The gravamen of the argument is that the Indiana statute embodies a preference for religion over irreligion and therefore violates the Establishment Clause. The ACLU is representing the plaintiffs in Center for Inquiry v. Clerk, Marion County, and its press release is here.

[image: 14th C wedding via]

May 11, 2012 in Establishment Clause, Family, First Amendment | Permalink | Comments (1) | TrackBack (0)

Thursday, May 10, 2012

Second Circuit Upholds NY's Kosher Law

Historic labelNew York has had kosher fraud or kosher labeling laws since 1915. 

The present statute, the Kosher Law Protection Act of 2004 essentially provides:

  1. that any food establishment that sells or offers for sale food prepared on its premises or under its control that is represented as kosher post a kosher certification form on the premises;
  2. that any individual packaging a product which is sold or offered for sale as “kosher” or “kosher for passover” label these products as such;
  3. that any person selling both kosher and non-kosher products post a window sign indicating that both kosher and non-kosher products are sold there;
  4. and that any individual certifying a food product as kosher file his or her identifying information with the Department of Agriculture, and if that individual is certifying non-prepackaged food as kosher, he or she must also file a statement of his or her qualifications for providing such certification.
This 2004 revision is the result of previous litigation in which the precedessor statute was declared unconstitutional by the Second Circuit as violating the Establishment Clause.  Applying Lemon, the Second Circuit had found that the law caused excessive entanglement and both advancing and inhibiting religion.

However, in today's opinion in Commack Self-Service Kosher Meats, Inc. v. Hooker, the Second Circuit upheld the 2004 Kosher Protection Act, affirming the district judge.  The plaintiffs, Commack Self-Service Kosher Meats - - - who had also instigated the previous litigation - - - argued that the 2004 Act violated both the Establishment Clause and the Free Exercise Clause.

The Second Circuit applied the well-known Lemon test - - - from Lemon v. Kurtzman - - - and repeatedly stressed the fact that "kosher food" is not primarily a religious commodity.  Moreover, in deciding the "secular purpose" prong, the Second Circuit found it important that unlike the prior version, the 2004  Kosher Act does not adopt a definition, interpretation or standard for the term “kosher.”  As for endorsement, again, the Second Circuit distinguished the prior Act: there is no preference in the 2004 Act for one sacred text over another; it only requires labeling. 

The panel also rejected the Free Exercise claim.  The plaintiffs argued that the labeling requirements were excessive and burdened the free exercise of their non-Orthodox religion.  The court, however, found that the law was a neutral one of general applicability and the state's interest in preventing fraud is served by the statute.

Thus, it seems that the state learned from its earlier experience with the Kosher Law to craft a statute that may seem religious, but survives First Amendment challenges under the religion clauses.

[image: historic wine label via]

May 10, 2012 in First Amendment, Opinion Analysis, Recent Cases, Religion | Permalink | Comments (1) | TrackBack (0)

Group Lacks Standing to Challenge BLM Land Certification

Judge Colleen Kollar-Kotelly (D.D.C.) ruled today in Wildearth Guardians v. Salazar that Wildearth lacked standing to challenge the Bureau of Land Management's rejection of its petition to recertify the Powder River Basin in Wyoming as a "coal production region" and thus, according to Wildearth, to limit the environmental impact of coal mining in the Basin.

The ruling ends Wildearth's efforts to get the BLM to recertify the basin, at least unless Wildearth refiles, or appeals and (as seems unlikely) wins. 

The case grew out of Wildearth's petition to the BLM to recertify the Basin as a "coal production region."  The BLM had earlier decertified the region, thus allowing land to be leased in the Basin for coal production by application.  Wildearth claimed that leasing-by-application diminished competition and prevented the BLM from analyzing and addressing the environmental impacts of coal leasing in the Basin.  It petitioned the BLM to recertify the Basin as a "coal production region."

The BLM declined to recertify, and Wildearth sued.

Judge Kollar-Kotelly ruled that Wildearth lacked standing, because a favorable result in the case wouldn't necessarily redress its alleged harms.  In particular, she wrote that even if the court granted Wildearth's requested relief--to vacate BLM's decision and to remand to the BLM for reconsideration--the BLM might nevertheless re-decide not to recertify.  Moreover, even if BLM were to recertify, it might set a coal leasing ceiling at a high level that wouldn't redress Wildearth's aesthetic and recreational harms.  "The central point is this: the denial of WildEarth Guardians' petition and the recertification of the Powder River Basin are many, many steps removed from the injuries identified by Plaintiffs."  Op. at 18.

Judge Kollar-Kotelly also rejected Wildearth's arguments for procedural standing (because Wildearth did not plead that the BLM omitted a procedural requirement before denying its petition) and informational standing (because nothing required the BLM to disclose the relevant information, even if they won the case).


May 10, 2012 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

In Memoriam: Nicholas deBelleville Katzenbach

Law students know him as the "Katzenbach" of Katzenbach v. McClung, 379 U.S. 29 (1964), the "Ollies BBQ case" upholding Congressional power under the Commerce Clause for the accomodations portions of the 1964 Civil Rights Act, and of Katzenbach v. Morgan, 384 U.S. 641 (1966), the "Puerto Rican voting case" upholding Congressional power under §5 of the Fourteenth Amendment for the Voting Rights Act of 1965.

Nicholas deBelleville Katzenbach served as Attorney General (and Acting Attorney General) in the LBJ Administration, litigating a host of civil rights cases. 

The NYT obituary highlights Katzenbach's actions during the civil rights era: "Perhaps his tensest moment came on June 11, 1963, when he confronted George C. Wallace in stifling heat on the steps of the University of Alabama in Tuscaloosa." 

The WaPo obituary places him at the center of government during a turbulent era: "Katzenbach’s time in government was like a history of government in the 1960s: The Bay of Pigs. The Cuban Missile Crisis. Integration of schools. The Warren Report. The Civil Rights Act. Vietnam."   It also links him as a source for Robert Caro's biography of LBJ.

The ACS Blog has a moving personal remembrance by Estelle Rogers. 

[image: Katzenbach, 1968, via]


May 10, 2012 in Cases and Case Materials, Commerce Clause, Fourteenth Amendment, History | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 8, 2012

Recording Police A First Amendment Right: Seventh Circuit Weighs In

The Seventh Circuit in ACLU v Alvarez has instructed the district court to enjoin Illinois broad "eavesdropping statute" from being applied to a "police accountability" recording program in Chicago.

Illinois has one of the most severe wiretapping statutes under which, as the Seventh Circuit noted, might allow "silent video of police officers performing their duties in public; turning on a microphone, however, triggers class 1 felony punishment."

The majority of the panel phrased the question as "whether the First Amendment prevents Illinois prosecutors from enforcing the eaves- dropping statute against people who openly record police officers performing their official duties in public."  The American Civil Liberties Union of Illinois (“ACLU”) challenged the statute as applied to the organization’s Chicago-area “police accountability program,” which "includes a plan to openly make audio- visual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders." 

The majority reasoned that the

the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to content- neutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free- speech and free-press guarantees.

The majority supported this conclusion in a lengthy and closely argued analysis, peppered with scholarly citations as well as cases.  It noted that the "First Circuit agrees," citing and discussing Glik v. Cunniffe

Posner's dissent was predictable given his stance during the oral arguments in which he expressed disdain for a "civil rights" group ever having anything useful to say regarding police practices.  He  highlighted the procedural posture of the case (a preliminary injunction) and the presumed constitutionality of statutes unless a judge has a "gut feeling" regarding the statute.  On the substance, he stressed the privacy interests of the persons engaged with police officers.

[Chicago Police Officers on horeseback near "El" via]

May 8, 2012 in Criminal Procedure, First Amendment, Opinion Analysis, Speech, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, May 7, 2012

Press, Protest, and Prosecution: Constitutional Limits in Santa Cruz?

Two Indybay photojournalists are seeking dismissal of charges against them including conspiracy to commit vandalism/trespass in conjunction with an Occupy event in an otherwise vacant building in Santa Cruz last November. 

Santa-cruz-eleven-may-4-2012-11According to the motion to dismiss filed by the defendants, Bradley Stuart Allen and Alex Darocy, were singled out.  They aver that they were only in the building a short time and only some of the persons in the building for the four night occupation were prosecuted.  Indeed, they argue that during "the four days, at least one member of the Santa Cruz City Council entered the building, but she was not among those charged with any crimes" and likewise a "photographer from the Santa Cruz Sentinel, (the County’s principal newspaper) also entered and took photographs, but he has not been charged."  They therefore argue that the charges are selective prosecution in violation of the Equal Protection and Due Process Clauses.

The ACLU of Northern California has filed an amicus brief in support of the motion to dismiss on the grounds of the First Amendment.  The ACLU memo focuses on "vicarious liability" and finds especially problematical statements offered by the State at the preliminary hearing such as the defendants “were there to publicize the protest for the group. The photographs they took, the articles they posted... The defendants served as the public information officers for the occupiers ....” 

The ACLU memo argues that the defendants are entitled to First Amendment protections: "the constitutional protections for the press extend beyond the institutional press to anyone who would gather information about matters of public interest and disseminate it to the public, citing both Citizens United v. Federal Election Com'n, and the recent First Circuit case of Glik v. Cunniffe.  Moreover, "the Occupy movement, and the actions of November 30, are clearly newsworthy; indeed, advocacy for social and political change lies 'at the core of the First Amendment.'"

At the heart of the ACLU's argument is the contention that "had they published photos that portrayed the Occupiers in a bad light the government could not be making these arguments and, accordingly, would likely not be prosecuting them."  Thus, the ACLU argues that it is the "content and viewpoint of their reporting" that has resulted in the prosecution.

The ACLU's First Amendment argument of viewpoint/content discrimination under the First Amendment is parallel to the Defendant's argument of selective prosecution violative of the Equal Protection and Due Process Clauses.

The hearing is set for May 8.

[h/t Trial Insider]
[image: May 4 Rally for Charges to be Dropped by Prosecutor Bob Lee via]

May 7, 2012 in Criminal Procedure, Due Process (Substantive), Equal Protection, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Rejects Veterans' Claims

The en banc Ninth Circuit today rejected veterans groups' claims against the VA over delays in the provision of mental health care and the adjudication of service-connected disability compensation claims.  The court ruled that it lacked jurisdiction over the groups' mental health care claims and disability benefits claims, and that while it had jurisdiction over the groups' due process challenges to regional office procedures, those challenges failed on the merits.

The ruling is based on a broad reading of the statutory restriction on federal court involvement in cases related to veterans benefits outside the Veterans Court and the Federal Circuit; it means that veterans and veteran groups won't be able to get judicial relief for anything related to veterans benefits in the Ninth Circuit.  While they can still file claims related to individual benefits decisions in the Veterans Court and the Federal Circuit (an appeal of a denial of benefits at the VA, e.g., or even an individual mandamus claim to get the VA moving), they apparently have no judicial remedy for claims like this, based on systemic delay.

The case, Veterans for Common Sense v. Shinseki, arises out of a complaint by two veterans groups that the VA delayed the provision of mental health care and the adjudication of service-connected disability claims of veterans.  The court ruled that it lacked jurisdiction, because Congress "expressly disqualified us from hearing cases related to VA benefits in Section 511(a), and . . . Congress has conferred exclusive jurisdiction over such claims to the Veterans Court and the Federal Circuit." 

Section 511(a) says that the VA

shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans.

38 U.S.C. Sec. 511(a).  The court ruled that the groups' mental health care claims and disability benefits claims would require it to delve into "the circumstances of individual veterans and their requests for treatment, and determining whether the VA handled those request properly," thus intruding into an area that Congress reserved, under Section 511(a), to the VA.  Op. at 4850.  The court rejected the plaintiffs' argument that they challenged only average delays, not individual delays, and that the court could rule without violating Section 511(a).  The court said that this was a distinction without a difference.

In contrast, the court ruled that it possessed jurisdiction over the plaintiffs' challenges to VA regional office procedures, but, applying Mathews v. Eldridge, it rejected those challenges on the merits, emphasizing Congress's creation of a non-adversarial system of benefits administration.

Judge Schroeder dissented, arguing that the court erred in rejecting jurisdiction on the first two claims, writing that "the claims of systemic delay do not, in my view, require any review of the VA's actual benefits decisions."  Op. at 4868.


May 7, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Fundamental Rights, News, Opinion Analysis, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)

Women Sue Washington AG for Role in ACA Challenge

A group of Washington women filed suit last week in state court against Washington AG Rob McKenna for his role in the multi-state challenge to the federal Patient Protection and Affordable Care Act case now before the Supreme Court.  The plaintiffs in Mackey v. McKenna seek declaratory and injunctive relief, in particular, a state court order requiring McKenna to file corrective pleadings asking the Supreme Court to uphold the ACA provisions that protect women's health care, even if it strikes down the so-called individual mandate.

The plaintiffs claim that McKenna himself said that it was in the best interest of Washingtonians to invalidate only the individual mandate, and to leave certain other provisions of the Act in place.  Yet he joined the state in the multi-state suit against the entire ACA, allegedly capitulating to a majority of other state-plaintiffs, which voted to argue that the individual mandate was not severable, ensuring that the entire ACA would fall if the Supreme Court held the individual mandate unconstitutional.  The plaintiffs argue that McKenna's capitulation, and his failure to truthfully inform state citizens about the litigation, violated his professional duties to Washingtonians.

The plaintiffs argue that they stand to lose vital protections in the ACA related to women's health--access to preventive care, the elimination of a lifetime cap on benefits, expanded insurance coverage, and access to birth control--if the entire Act is overturned.

The plaintiffs argue that Washington law allows taxpayer standing, but they do not address the other obvious problems that (1) full relief--a corrective pleading by McKenna and declaration that he violated state professional responsibility standards--will have no effect on the case at the Supreme Court (because the Court can already treat the individual mandate as severable, or not) and (2) the Supreme Court will rule before the state court case runs its course. 

But this case is less about getting full relief in the form of a corrective pleading and more about holding McKenna accountable for his judgments and performance as the state's lawyer.  If Professor Robert Aronson (U. Washington) is right in his supporting affidavit (attached at the end of the complaint), McKenna's acts are a clear violation of his professional ethical duties to the state.


May 7, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Sunday, May 6, 2012

Guantanamo Military Commission Arraignments

The arraignments by military commission on Saturday of Khalid Sheikh Mohammed and four others at Guantanamo Bay was rocky, at best.  It featured everything from disputes about clothing--both the prosecutors' and the defendants'--to disputes about barriers to defense counsels' ability to communicate and represent their clients.  The New York Times, The Washington Post, and NPR, among many others, reported. 

While the best live play-by-play was provided by Benjamin Wittes and Wells Bennett at Lawfare, you can read the transcripts of Saturday's proceedings for yourself, available here at the Office of Military Commissions web-site.


May 6, 2012 in Executive Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Drone Strike Kills Al-Quso

The Associated Press reported today that a CIA drone strike killed Fahd al-Quso, "a top al-Qaida leader on the FBI's most wanted list for his role in the 2000 bombing of the USS Cole warship."  According to the report, al-Quso served time in a Yemeni prison for his role in the bombing and was released in 2007.  The CIA carried out the attack with the authorization of the Yemeni government--part of its effort to bring the host country on board with strikes.

The strike comes just a week after President Obama authorized expanded use of drones in Yemen.  The new authority allows the government to identify targets based on their "signatures"--those patterns detected through intelligence that indicate that a target is an operative or otherwise poses a threat against U.S. interests--and not just their "personality."


May 6, 2012 in Executive Authority, International, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Sunday Book Review: Robert Caro on LBJ

758px-Lyndon_B._Johnson_taking_the_oath_of_office,_November_1963The book of the week is definitely Robert Caro's fourth (and next to last) volume of the biography of Lyndon Baines Johnson, the 36th United States president.  In over 700 pages, Caro discusses and documents five tumultuous years in the life of LBJ - - - and in the nation's life - - - roughly from 1960 until 1964. 

It's a period that includes the assination of JFK with LBJ assuming the presidency.  LBJ's oath of office, observed by Jackie Kennedy, is captured in an iconic photograph (right via).  Caro's details of the event are based in part on interviews with the photographer.

The NYT Sunday book review has a front page review by the United State's 42nd president, Bill Clinton. In a passage that might give some pause given Clinton's own problems, Clinton writes:

As Caro shows in this and his preceding volumes, power ultimately reveals character. For L.B.J., becoming president freed him to embrace parts of his past that, for political or other reasons, had remained under wraps. Suddenly there was no longer a reason to dissociate himself from the poverty and failure of his childhood. Power released the source of Johnson’s humanity.

The NYT also has a review by Michiko Kakutani and a worth watching, if quite brief, video discussion between NYT's Sam Tanenhaus and author Robert Caro. 

NPR also has a terrific review as well as an excellent interview by Steve Inskeep with Caro, stressing his writing process.  Inskeep provides more insight and his own observations, including critiques of Caro's work, in an essay in The Washington Post.  C-Span will air a two-part interview with Caro.

Caro vows to finish the final volume of the biography, which will cover the period until LBJ's death in 1973.  It will undoubtedly include LBJ's nomination and the Senate's confirmation of Thurgood Marshall to the United States Supreme Court.


May 6, 2012 in Books, History, Scholarship | Permalink | Comments (0) | TrackBack (0)