Friday, February 10, 2012
The case settled.
In the settlement approved by the court, the school district agreed its employees would "not do any of the following in the presence of students, either during the school day or at School District-sponsored activities or events: (a) initiate, solicit or direct prayers, (b) join students in prayers (e.g., joining in a student prayer circle), (c) proselytize, or (d) invite a third-party to engage in any of the practices listed in (a)(c)" and would not display religious images, Bibles or religious texts, "unless such is for pedagogical and non-religious purposes (such as a history of world religions course)." And at graduation, the school district "will not include a prayer whether referred to as a prayer, blessing, invocation, benediction, or otherwise as part of the official program of any graduation ceremony" and the "portions of the program devoted to student speeches will each be given the same name, such as Student Remarks or a substantially similar, but non-religious term. For instance, "Student Remarks by [valedictorian]".
District Judge Biery had entered a preliminary injunction in June 2011, including a provision that the school district "shall remove the terms “invocation” and “benediction” from the program of ceremonies for the graduation exercises. These terms shall be replaced with “opening remarks” and “closing remarks.”" This was quickly reversed by the Fifth Circuit in a per curiam opinion on an emergency motion, in part for mootness - - - the school district having abandoned the use of "invocation."
What makes this settlement and its approval other than run-of-the-mill is District Judge Biery's opinion approving the settlement, with its appendix II, entitled "An Ironic Venue for Separation of Church and State Litigation," including a catalog of quotes.
If it reads more like a position paper than a judicial opinion, that may be because it seemingly responds to another position paper. One by Presidential Candidate New Gingrich. As we've previously discussed, Gingrich's views on the federal judiciary are less than positive, including his "white paper" on judicial activism. The paper states:
A good place to start correcting federal judges is in Texas. This past June, a federal district court judge in West Texas issued an extraordinary judicial order that threatened local school officials with going to jail if they failed to censor the content of a student’s speech at a high school graduation ceremony. Such oppressive and tyrannical behavior from a sitting federal judge is not constitutional and has no place in America. Congress would be well within its power to impeach and remove this federal judge from office, or failing that, work with the President to abolish his judgeship.
Appendix B of the white paper discusses Schultz v. Medina Valley Independent School District and Judge Biery by name, concluding that the "American people would be better off without a judge whose anti-religious extremism leads him to ban a high school valedictorian from saying even the word “prayer.”"
Judge Biery's response - - - although he never mentions Gingrich by name - - - matches Gingrich's style of rhetoric, complete with quotations and historical incidents. The order also includes some "personal thanks" that provide a flavor of the controversy and allude to Gingrich.
To the United States Marshal Service and local police who have provided heightened security: Thank you.
To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination: In His name, I forgive you.
To those who have prayed for my death: Your prayers will someday be answered, as inevitably trumps probability.
To those in executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves.
To the lawyers who have advocated professionally and respectfully for their clients respective positions: Bless you."
Thursday, February 9, 2012
A three-judge panel of the D.C. Circuit rejected Guantanamo detainee Abdul-Rahman Abdo Abulghaith Suleiman's habeas claim earlier this week. The case is just the latest from the D.C. Circuit on habeas claims of a Guantanamo detainees.
The court applied its familiar "part of" standard and concluded that Suleiman was part of the Taliban. The panel upheld the district court's findings based on Suleiman's own testimony, an FBI report summarizing an interview, and a DOD record of an interview.
According to the court,
There is no dispute that Suleiman's travel was initiated at the suggestion of and facilitated by a Taliban recruiter, and that he traveled a well-worn path to Afghanistan frequently used by Taliban recruits. . . .
He lived at the Al-Qa'eity guesthouse for seven months. . . . His Taliban fighter housemates used it as a base to travel to and from the battlefront during the time Suleiman was there.
Op. at 5-6.
May a state limit its statutory Freedom of Information Act to "state citizens"?
Doesn't such a provision violate the Privileges and Immunities Clause of Article IV? Or the dormant aspect of the commerce clause?
Not according to the Fourth Circuit. In McBurney v. Young, decided earlier this month, the Fourth Circuit upheld the constitutionality of a Virginia statute that allows access to state records to "to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth." Va. Code Ann. § 2.2-3704(A).
The challengers - - - one a former resident of Virginia with his divorce, child custody, and child support decrees from Virginia and another an information broker dealing in real estate tax assessments - - - argued that the state citizen limitation violated the Privileges and Immunities Clause of Article IV and the information broker also argued the "dormant" aspect of the Commerce Clause, Art. I §8 cl. 3.
The Fourth Circuit affirmed the district judge's rejection of both of these claims.
Regarding Article IV Privileges and Immunities (P&I), the panel opinion admitted that the contours of the P&I Clause are not well-developed, but noted that the "fundamental rights" its encompasses are distinct and "bear upon the vitality of the nation." With regard to the right to "pursue a common calling," the panel noted that the Virginia statute is not a residency requirement per se: the Virgina FOIA "does not act as a wholesale barrier to entering a business, nor does it establish a license, fee, or other burden to nonresidents entering or engaging in a profession" and on its face it "addresses no business, profession,
or trade." With regard to the less well-established rights under P&I, such as "equal access to information" or "ability to advance one's interests," the panel found these rights were not established. Having found no right sufficient to invoke P&I, the panel did not engage in any balancing of state interests and means chosen.
Regarding the dormant commerce clause (DCC), the panel again found that the clause was not properly at issue. The panel stated that although "the VFOIA discriminates against noncitizens of Virginia, it does not discriminate 'against interstate commerce' or 'out-of-state economic interests.' " Yet the panel somewhat confusingly added that "[a]ny effect on commerce is incidental and unrelated to the actual language of VFOIA or its citizens-only provision," and therefore a Pike balancing analysis, after Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) is appropriate. The panel, however, does not engage in any balancing, holding that "the opening brief does not challenge the district court's application of the Pike analysis and thus the argument is waived.
There is something about an open records act being limited to state citizens that seems inconsistent with our notions of a "United States," as well as inconsistent with our notions of openness. The Fourth Circuit's lack of a discussion of the state interests and how they are being served leaves an unfortunate gap, even as P&I and DCC doctrines do not seem adequate to address the issue.
Wednesday, February 8, 2012
The en banc Seventh Circuit heard oral argument on Wednesday in Vance v. Rumsfeld, the case by two American military contractors against the former Secretary of Defense (among others) for authorizing their torture while in military detention in Iraq. We posted on the three-judge panel decision allowing the case to move forward here. The full Seventh Circuit vacated that decision and took up the case en banc.
The plaintiffs, Vance and Ertel, filed a Bivens claim against Rumsfeld and others, seeking monetary damages and injunctive relief. The government, on behalf of Rumsfeld, moved to dismiss, arguing that special factors counseled against a Bivens remedy, namely wartime context and the military's ability to do its job without threat of litigation.
The arguments today focused around these themes--all relating to special factors counseling against Bivens except the last one:
Disincentives. Some on the bench, led by Judge Posner, were concerned that allowing a Bivens claim to move forward here would discourage talented people from considering public service. Others expressed concern that not allowing a Bivens claim here would give a green light to the military to violate whatever constitutional provisions it likes, with no judicial check.
Separation of Powers. Some, again led by Judge Posner, argued that Congress was the better branch to provide a remedy, and that the courts should take great caution in crafting a judicial remedy, or in applying Bivens beyond its narrow facts.
Contractor Status. Judge Posner pressed the plaintiffs' attorney about the plaintiffs' contractor status, suggesting that this status, equivalent in all but name to active members of the military, creates exactly the same special factors counseling against a Bivens remedy that an active-duty member's claim raises. And the courts have rejected Bivens for such a military-on-military claim.
Alternative Remedies. Several on the bench seemed concerned that the plaintiffs hadn't pursued, or hadn't at least tried to pursue, alternative compensation remedies through the Defense Department.
Judge Posner, the most vocal voice on the court against a Bivens damage remedy, was also most vocal about saying that the plaintiffs could get injunctive relief. Thus one possibility is that the en banc court would dismiss the damage action but allow injunctive relief to move forward. The problem: Plaintiffs might then face a Lyons-like standing problem.
Another possibility: The en banc court might dodge the thorny question of special factors and instead dismiss the case based on the plaintiffs' failure to pursue alternative remedies.
Oddly, nobody on the bench (or behind the podium) seemed to consider that the qualified immunity doctrine could cover for the discourage-public-service concern--and that qualified immunity might do it in a better way: Allowing the Bivens case to move forward would give the plaintiffs their day in court and only discourage plainly unconstitutional public service, not all public service.
February 8, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Oral Argument Analysis, War Powers | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 7, 2012
As we noted earlier today, the Ninth Circuit panel has affirmed the district judge that Proposition 8 is unconstitutional, in a 2-1 decision.
The panel was unanimous on two points:
First, the proponents had standing. The standing issue is convoluted in this case, for it is the standing of Hollingsworth and ProtectMarriage.com to appeal as proponents of Proposition 8, given that the state (in the person of defendant Governor Brown, formerly Schwarzenegger) refused to defend the constitutionality of Prop 8. The panel distinguished Arizonans for Official English v. Arizona, 520 U.S. 43, (1997), stating that unlike that case,
we do know that California law confers on “initiative sponsors” the authority “to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” The California Supreme Court has told us, in a published opinion containing an exhaustive review of the California Constitution and statutes, that it does.
While a state (or other party) cannot confer Article III standing on a federal court, a state, as an "independent sovereign" possesses the prerogative to "decide for themselves who may assert their interests and under what circumstances." Thus, the California Supreme Court's decision is outcome determinative.
Second, Walker's sexuality was not a reason to vacate his opinion. More precisely, applying the abuse of discretion standard, District Judge Ware, who replaced Judge Walker Vaughn, was affirmed regarding the denial of a motion to vacate Walker's judgment based on Walker's sexuality.
The panel divided on the central issue: the constitutionality of Prop 8 itself. The majority opinion, authored by Reinhardt concluded that Proposition 8 was unconstitutional. Reinhardt begins the panel majority opinion with an important framing of the issue:
Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.
Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right—the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less.
Thus, Judge Reinhardt's opinion continued, Prop 8 "therefore could not have been enacted to advance California's interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples." Additionally it did not "have any effect on religious freedom or on parents' rights to control their children's education; it could not have been enacted to safeguard these liberties." Instead, all that Prop 8 "accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships." Later in the opinion, the panel majority provides examples of the cultural significance of "marriage" as a term:
Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, “Will you marry me?”, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see “Will you enter into a registered domestic partnership with me?”. Groucho Marx's one-liner, “Marriage is a wonderful institution ... but who wants to live in an institution?” would lack its punch if the word ‘marriage’ were replaced with the alternative phrase. So too with Shakespeare's “A young man married is a man that's marr'd,” Lincoln's “Marriage is neither heaven nor hell, it is simply purgatory,” and Sinatra's “A man doesn't know what happiness is until he's married. By then it's too late.” We see tropes like “marrying for love” versus “marrying for money” played out again and again in our films and literature because of the recognized importance and permanence of the marriage relationship. Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for samesex couples is no different. The name ‘marriage’ signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships. . . . .
Thus, for the panel majority, Prop 8 "serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples." The panel majority stated that the "Constitution simply does not allow for 'laws of this sort,' " quoting and citing Romer v. Evans, 517 U.S. 620, 633 (1996).
Indeed, Romer v. Evans - - - in which the Supreme Court invalidated Colorado's Amendment Two that had prohibited any policies, ordinances, or laws that allowed claims of discrimination on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships" - - - is a lynchpin of the panel majority's analysis. Like Amendment 2, Prop 8 eliminated a pre-existing right: "as the voters were told," Prop 8 would “eliminate the right of same-sex couples to marry in California.” :
Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.
Applying Romer's heightened rational basis scrutiny with its emphasis on animus as not satisfying a legitimate state interest, the panel majority finds Prop 8 - - - as an initiative that changed the status quo - - - to be unconstitutional.
Judge Smith, dissented as to the constitutionality of Proposition 8, largely arguing that Romer v, Evans was distinguishable.
The majority panel's final footnote forestalls the effect of the decision: "The stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuance of the mandate."
The proponents now have to decide whether to seek a rehearing enbanc by the Ninth Circuit or to petition the United States Supreme Court for a writ of certiorari. Doubtless, they will do one or the other. And the complex Prop 8 saga will continue.
February 7, 2012 in Courts and Judging, Current Affairs, Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)
The Ninth Circuit panel has rendered its opinion in Perry v. Brown, on the constitutionality of California's Proposition 8 that prohibited same-sex marriage, affirming 2-1 Judge Vaugn Walker's extensive opinion based on the trial (our recap here) the videotapes of which will not be released as the Ninth Circuit ruled recently.
The Ninth Circuit Judges on panel, Stephen Reinhardt (middle), NR (Randy) Smith (right, and Michael Hawkins (left) disagreed on the major constitutional issue.
The panel was unanimous that the proponents had standing and that Judge Walker's opinion should not be vacated on the basis of his sexuality. The majority opinion, authored by Reinhardt concluded that Proposition 8 was unconstitutional. Judge Smith, dissented as to the constitutionality of Proposition 8, arguing that it was rationally related to a legitimate government interest.
MORE ANALYSIS HERE.
Monday, February 6, 2012
A group of 39 Republican Senators said on Friday that they would file an amicus brief in a court case challenging President Obama's recent recess appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board.
We posted most recently on the ongoing litigation brought by the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business against the NLRB. The plaintiffs in that case most recently filed a motion to amend their complaint to include a charge that President Obama's recess appointments to the NLRB were unconstitutional, and therefore that the NLRB didn't have sufficient sitting members to enforce its new rules. It's not clear if the Republicans seek to weigh in on this case, though: It involves only the NLRB, not the CFPB.
Senator John Cornyn (R-TX) released this statement on Friday:
American democracy was born out of a rejection of the monarchies of Western Europe, anchored by limited government and separation of powers. We refuse to stand by as this President arrogantly casts aside our Constitution and defies the will of the American people under the election-year guise of defending them.
Here's the statement from the Republican Senators:
We the undersigned believe that President Obama's January 4, 2012 recess appointments of individuals to lead the Consumer Financial Protection Bureau and National Labor Relations Board were unprecedented and unconstitutional. We intend to jointly file an amicus brief challenging the constitutionality of President Obama's appointments to the National Labor Relations Board and Consumer Protection Financial Bureau.