Wednesday, December 26, 2012

Sotomayor Rejects Hobby Lobby's Emergency Stay of ACA Contraception Coverage Mandate

In her role as Circuit Justice for the Tenth Circuit, Justice Sonia Sotomayor today rejected an application for an injunction pending appellate review from Hobby Lobby.  In her brief order in Hobby Lobby Stores, Inc. v. Sebelius, Sotomayor ruled that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."

Hobby-Lobby-Logo

Recall that in November, an Oklahoma district judge stressed that Hobby Lobby, an arts and crafts store chain operating in 41 states, as well as its co-plaintiff, the Mardel corporation, were secular for-private corporations that did not possess free exercise of religion rights under the First Amendment.  Judge Joe Heaton therefore denied the motion for a preliminary injunction regarding their First Amendment objections to complying with contraceptive requirements under the Patient Protection and Affordable Care Act. 

Sotomayor notes that the Tenth Circuit refused to issue a stay pending appeal and she saw no reason to depart from that conclusion: "Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts. Following a final judgment, they may, if necessary, file a petition for a writ of certiorari in this Court."

RR

December 26, 2012 in Courts and Judging, Current Affairs, Family, First Amendment, Free Exercise Clause, Gender, Opinion Analysis, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Where Are the Guns? Constitutional Considerations of Publication of Mapped Information

An interactive map revealing gun information published by a suburban New York newspaper is causing an uproar.  The newspaper explained, to "create the map, The Journal News submitted Freedom of Information requests for the names and addresses of all pistol permit holders in Westchester, Rockland and Putnam [Counties]. By state law, the information is public record."

Screen Shot 2012-12-26 at 7.41.54 PMThe newspaper's actions come in the wake of renewed conversations regarding gun control and ownership.  However, the disclosure of information using google maps is not new.  Activists used Google maps to disclose the names, addresses, and contributions made by Californians in support of Proposition 8 that prohibited same-sex marriage.  (Recall Prop 8 is now before the United States Supreme Court.)

While not using mapping applications, the Supreme Court's 2010 decision in Doe v. Reed is relevant.  In Doe v. Reed, the Court 8-1 rejected a First Amendment challenge to the disclosure of names on a petition seeking a ballot initiative, again prohibiting same-sex marriage, in Washington state.  Interestingly, during the oral argument, the Justices seemed often to conflate the Washington initiative with California's Proposition 8. Yet the fact that state law through its public record law was merely requiring disclosure, rather than prohibiting speech, was central to the Court's opinion that there was not a right to remain anonymous.  The names were thus disclosed.

State law could, however, provide a "Firearms Ownership Privacy Act" such as those being advocated by the National Rifle Association that might seek to declare gun permits non-public records.  The firearms privacy act passed in Florida, prohibiting doctors from inquiring about gun ownership, was enjoined as a violation of the First Amendment.

RR
[image screenshot via]

December 26, 2012 in Current Affairs, First Amendment, Privacy, Second Amendment, Sexual Orientation, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 25, 2012

Happy Grading!

While some may say "happy holidays,"  it's also a time of grading for most ConLawProfs. 

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Wishing all graders "Zen" again this year

RR
[image via]

December 25, 2012 in Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Sunday, December 23, 2012

Judge Sullivan Dismisses Filibuster Challenge

Judge Emmet G. Sullivan (D.D.C.) on Friday dismissed Common Cause v. Biden, the legal challenge to the Senate's filibuster rule.  Recall that Judge Sullivan heard oral arguments in the case earlier this month, and that standing was front and center.  it wasn't surprising then that Judge Sullivan's ruling on Friday turned on standing, and on separation of powers.

The ruling ends the case, unless and until the plaintiffs appeal.  It seems unlikely that the D.C. Circuit would rule differently.  In any event, if the Senate Democrats succeed in reforming the filibuster at the beginning of the next Congress, the case may become moot.

Judge Sullivan ruled that the plaintiffs lacked standing.  As to the House members: he wrote that he was "not persuaded that their alleged injury--vote nullifcation--falls into a narrow exception enunciated by the Supreme Court in Raines v. Byrd."  Op. at 2.  As to the other plaintiffs: they failed to "demonstrate[] that this Court can do anything to remedy the alleged harm they have suffered: the inability to take advantage of the opportunity to benefit from proposed legislation [the DREAM Act] that was never debated, let alone enacted."  Op. at 2.

On separation of powers, Judge Sullivan said that Article I reserves to each House the power to determine its own rules, and there's nothing in the Constitution constraining the Senate from allowing debate to continue absent a super-majority vote.  "[A]bsent a rule's violation of an express constraint in the Constitution or an individual's fundamental rights, the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court."  Op. at 3.

SDS

December 23, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Political Question Doctrine, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Sixth Circuit: Political Retaliation Doesn't Require Actual Affiliation

A divided three-judge panel of the Sixth Circuit ruled this week in Dye v. Office of the Racing Comm'n that government employees' First Amendment political retaliation claims could be based on their perceived political affiliation, and not just their actual political affiliation.  The case deepens a circuit split on the question, with the First and Tenth Circuits ruling that such claims can be based on perceived affiliation and the Third Circuit requiring actual affiliation.

The case arose when employees of the Michigan Office of the Racing Commissioner, the Michigan department that regulates horseracing in the state, claimed that their politically-appointed supervisors retaliated against them for their protected speech and their perceived political affiliation.  (The employees claimed that their superiors, Democrats, thought that they were Republicans.)  The district court granted the defendants' motion for summary judgment, ruling that the plaintiffs failed to allege that the defendants retaliated based on their actual, not just their perceived, political affiliation.

Judges Moore and Merritt agreed that the plaintiffs' claim didn't require them to allege that they were actually Republicans.  They borrowed from Waters v. Churchill--a speech case (not an affiliation case), holding that the Connick v. Myers test for government employee speech should be applied to what the government reasonable thought was said, and not what the trier of fact ultimately determines to have been said--and wrote that "[g]iven the plain meaning of Waters, along with our prior interpretation of its holding," op. at 14, the plaintiffs' affiliation claim should be judged by the plaintiffs' perceived affiliation, and not their actual affiliation.

Judge McKeague disagreed:

The majority's reading of Waters is troubling for two reasons.  First, by allowing a perceived affiliation claim such as the one here to go forward, the Court is essentially providing more First Amendment protection to government employees who have not even engaged in any actual conduct or speech.  . . .

Second, the majority does not explain why Waters, a protected speech case, should apply with equal force to a political affiliation case such as this one.  In my view, even though this is not a political patronage case, any decision on the perceived affiliation issue should certainly take into account the governing principles in the Supreme Court's political patronage dismissal cases . . . (rather than protected speech cases such as Waters).  Those cases deal directly with First Amendment protection of the right to political affiliation, and are thus a window into how the Court views such claims.

Op. at 37.

SDS

December 23, 2012 in Association, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)