Friday, May 31, 2013
While for many Conlawprofs Loving v. Virginia is the "face" of love and marriage across racial divides, looking both backward and forward from the 1967 case can add depth to teaching and scholarship about the issue. (And if it seems not to be an issue any longer, a quick look at the "controversy" caused by a cereal advertisement featuring an interracial couple and their child is worth considering).
Professor Angela Onwuachi-Willig's new book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family, just published by Yale University Press, provides that depth.
Her exploration focuses on Rhinelander v. Rhinelander, a case that did not involve a constitutional issue, except to the extent that racial categorizations always implicate issues of constitutionalism and equality. As Onwuachi-Willig describes in a piece in the UC Davis Law Review,
Alice Beatrice Jones was a working-class woman, who met Leonard Kip Rhinelander, a wealthy white male descendant of the Huguenots and heir to millions of dollars, in the fall of 1921. . . . [They married in a private ceremony and] Just two weeks later, on November 26, 1924, Leonard filed for annulment of his marriage to Alice. He argued that Alice had lied to him about her race. Leonard claimed that Alice had committed fraud that made their marriage void by telling him that she was white and by failing to inform him that she was of “colored blood.”
Rather than litigate her whiteness as many expected, she argued that he knew her racial status.
The trial of the Rhinelanders proved to be shocking on many fronts. It involved racy love letters, tales of pre-marital lust and sex, and the exhibition of Alice’s breasts, legs, and arms in the courtroom to prove that Leonard, who had seen her naked before marriage, would have known that she was colored at the time of their nuptials. What was most scandalous about the Rhinelander case, however, was the trial’s end. The jury returned a verdict for Alice, determining that Leonard knew her racial background before marriage yet married her anyway.
Onwuachi-Willig's book also provides contemporary arguments that current law fails to protect interracial couples, especially given the privileges that continue to be accorded on the basis of marriage.
As we wait for both Fisher v. UT and the same-sex marriage cases of Perry and Windsor, or as we contemplate their meanings once the opinions are rendered, Onwuachi-Willig's book is an important and pleasurable read.
The IRS scandal caused by allegations that certain groups were highlighted for extra scrutiny regarding their tax-exempt status application has spawned several complaints filed in federal court alleging violations of the First Amendment and Fifth Amendment.
Paul Caron over at Tax Prof Blog has been keeping tabs on the scandal including linking to the developing news items. The scandal started with a report issued by the Treasury Inspector General for Tax Administration entitled "Inappropriate Criteria Were Used to Identify Tax-Exempt Applications for Review."
Underlying the controversy is the application of 26 U.S.C. § 501(c), governing organizations that shall be exempt from taxation.
Subsection (c) (3) includes:
Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.
Subsection (c) (4) includes:
Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare, or local associations of employees, the membership of which is limited to the employees of a designated person or persons in a particular municipality, and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes.
The extent to which such tax exempt organizations may engage in political activities and whether they must be "exclusively" - - - or in contrast "primarily" - - - for the promotion of social welfare is subject to some controversy. For example, the group Citizens for Responsibility and Ethics in Washington has petitioned for clarifying rule (or change in rule) from the IRS.
Nevertheless, the allegations contend that IRS personnel subjected certain organizations to special scrutiny, seeking more documentation and causing significant delays. For example, the complaint in Norcal Tea Party Patriots v. IRS, a class action filed in the Southern District of Ohio, where the Cincinnati office is located, alleges:
In sum, because of their political viewpoints, conservative groups were subjected to harassment, intimidation, delay, discrimination, expense, intrusiveness, and embarrassment all as a part of a scheme by IRS agents and officers John Doe 1 -100 to suppress their political activity and punish their political views.
In another lawsuit filed in the District of Columbia, Linchpins of Liberty v. United States, the more expertly crafted complaint likewise alleges viewpoint discrimination in violation of the First Amendment as well as equal protection violations, in addition to statutory claims.
Given the government's own report, it will be interesting to seethe government's responses to the complaints.
Thursday, May 30, 2013
An Eleventh Circuit panel has rendered its opinion in AFCME v. Scott regarding the Executive Order of controversial Florida Governor Rick Scott requiring drug testing of all prospective state employees and random testing of all state employees. The panel held that the Executive Order "almost certainly sweeps far too broadly and hence runs afoul of the Fourth Amendment in many of its applications."
But it also held that last year's opinion by Judge Ursula Ungaro of the Southern District of Florida that enjoined the Executive Order "also swept too broadly and captured both the policy’s constitutional applications and its unconstitutional ones."
The gist of the panel's 61 page opinion is that Supreme Court cases such as Skinner v. Ry. Labor Execs.’ Ass’n (1989) hold that some categories of state employees may be drug tested without individualized suspicion and that a court must "balance the governmental interests in a suspicionless search against each particular job category’s expectation of privacy."
Note that this is distinct from situation seeking mandatory drug testing of welfare recipients - - - an injunction against which the Eleventh Circuit affirmed earlier this year.
But the panel also spent considerable space on the State's "bold" argument that the Executive Order could "justify suspicionless drug testing of all 85,000 government employees regardless of the nature of their specific job functions." The panel was "unpersuaded," and detailed its rejections of the State's arguments.
Thus, the panel gave clear guidelines to the district judge, remanding the case for a more limited injunction against the "sweeping" Executive Order.
[image: "Florida Sunrise" via]
Wednesday, May 29, 2013
Reversing a lower court, the Colorado Supreme Court upheld the constitutionality of the state's financing of public schools in its opinion in State v. Lobato.The underlying problem at issue in the contentious case is exemplified by a chart that appears in one of the two dissenting opinions, demonstrating that "education funding in Colorado has been in steady decline" in recent decades:
The majority of the state supreme court concluded:
The public school financing system enacted by the General Assembly complies with the Colorado Constitution. It is rationally related to the constitutional mandate that the General Assembly provide a “thorough and uniform” system of public education. Colo. Const. art. IX, § 2 (the “Education Clause”). It also affords local school districts control over locally-raised funds and therefore over “instruction in the public schools.” Colo. Const. art. IX, § 15 (the “Local Control Clause”).
The meaning of "thorough and uniform" in the state constitution was discussed by the majority through reference to dictionary definitions and limited precedent. The court concluded it did not require equality, but only a rational relationship test. Under this test, the plaintiffs did not "establish beyond a reasonable doubt that the system fails to pass constitutional muster."
The majority's 26 page opinion was countered by more than 40 pages in the two dissenting opinions by Justices Bender and Hobbs (each joining in the other Justice's opinion). These opinions argue that the majority "abdicates this court’s responsibility to give meaningful effect" to the state constitution's education clause and failed to guarentee that students receive their constitutional right to education.
Like so many other constitutional challenges to state educational systems, this one revolves around vague state constitutional provisions and legislative choices that many view as underfunding education on a state-wide basis. Surely, this decision in Colorado will be contentious.
Tuesday, May 28, 2013
President Obama plans to simultaneously nominate three judges to the D.C. Circuit, reports the NYT and HuffPo. The nominations would fill the three remaining vacancies on the 11-member court. The reports come the week after the Senate voted 97-0 to approve the President's nomination of Deputy SG Sri Srinivasan--nearly a year after his nomination.
The move is part of a strategy by Senate Democrats to highlight obstruction of judicial nominees by Senate Republicans. Democrats hope that by putting up three nominations at once, Republicans will be less likely to foot-drag (because foot-dragging on three nominations, and not just one, would highlight Republicans' obstruction).
Senate Republicans have reacted, calling the this an effort to "stack the court" (Senator McConnell's words). According to the NYT, Senate Republicans are considering a proposal to eliminate the three empty seats on the court and move two of them to other circuits.
The measure, S. 699, sponsored by Senator Grassley, would eliminate the three seats from the D.C. Circuit, add one seat to the Second Circuit, and add one seat to the Eleventh Circuit. If it could ever get out of the Senate, it would surely meet a veto.
The NYT reports that some Democrats think that Republican overreaching on these nominations could bring enough public pressure to change Senate rules to prohibit filibusters on judicial nominations.