Thursday, December 18, 2014

Second Circuit Grants Full Court Review to Occupy Brooklyn Bridge Case

The Second Circuit has granted full court review in Garcia v. Does, a panel decision which allowed plaintiffs' complaint arising from their arrests for participating in a demonstration in support of the Occupy Wall Street movement.  The panel, affirming the district judge, denied the motion to dismiss of the defendants/appellants, holding that on the current record it could not

resolve at this early stage the ultimately factual issue of whether certain defendants implicitly invited the demonstrators to walk onto the roadway of the Brooklyn Bridge, which would otherwise have been prohibited by New York law.

The unidentified Doe officers argued that video evidence warrants a dismissal.  The First Amendment issue of "fair warning" to revoke permission to protest is at issue in the case - - - which would seemingly require more than (incomplete) video evidence.  Yet the issue of qualified immunity is seemingly argued as overshadowing the incomplete evidence.

BrooklynBridge
Brooklyn Bridge via


Judge Debra Ann Livingston's lengthy dissent from the opinion by Judges Calabresi and Lynch argues that the panel majority "failed to afford the NYPD officers policing the “Occupy Wall Street” march the basic protection that qualified immunity promises – namely, that police officers will not be called to endure the effort and expense of discovery, trial, and possible liability for making reasonable judgments in the exercise of their duties."

Judge Livingston's views most likely attracted other judges.  Now the  "in banc" court (as the spelling is used in the Second Circuit) will hear the case, including Senior Judge Calabresi because he was on the panel.

 

December 18, 2014 in Courts and Judging, Film, First Amendment, Opinion Analysis, Recent Cases, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, December 12, 2014

Daily Reads: On Torture

With the publication of the more than 500 page  "Executive Summary" of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency's Detention and Interrogation Program (searchable document here),  the subject of torture is dominating many public discussions.

A few items worth a look (or second look):

    In French, Justice Scalia's interview with Le Journal du matin de la RTS (videos and report) published today.  One need only be marginally fluent in French to understand the headline: "La torture pas anticonstitutionnelle", dit le doyen de la Cour suprême US.  (h/t Prof Darren Rosenblum).

    The French report will not surprise anyone familiar with Justice Scalia's discussion of torture from the 2008 "60 Minutes" interview discussed and excerpted here.

    The "ticking time bomb" discussion in Scalia's remarks is the subject of an interesting commentary by ConLawProf Rosa Brooks in Foreign Policy provocatively entitled "Tick, Tick, Bull, Shit."

    And while Justice Scalia contended that defining torture is going to be a "nice trick," LawProf David Luban's 2014 book Torture, Power, and Law offers very explicit definitions, even as it argues that these definitions can erode as torture becomes "normalized," seemingly giving credence to Scalia's point.

800px-Woodcut_illustration_of_Leaena_-_Penn_Provenance_Project
Woodcut circa 1540 via

 

December 12, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Executive Authority, Foreign Affairs, International, Interpretation, News, Scholarship, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)

Monday, December 8, 2014

How Elite Lawyers Influence the Supreme Court

Check out The Echo Chamber: A Small Group of Lawyers and its Outsized Influence at the U.S. Supreme Court, a penetrating study of the influence that an elite band of attorneys exerts on the cases the Court takes up, and how it decides them. Echo Chamber is a special report by Reuters, in three parts, penned by Joan Biskupic, Janet Roberts, and John Shiffman.

The upshot: A small group of attorneys, just 66 of them, exert a tremendous influence over the cases the Court hears, with a decidedly pro-business tilt.

According to the authors, public interest lawyers may exert an influence, too--but by not filing, so as to avoid a binding ruling against them by a conservative-leaning Court. "[P]ublic interest lawyers effectively influence the court's agenda, too. They do so by declining to draft petitions for some kinds of civil rights and consumer cases. Their rationale: They do not want the Supreme Court to revisit decades-old decisions that tend to favor the liberal agenda."

The authors examined cert. petitions, and the attorneys who filed them, over a nine-year period to identify the 66 lawyers and 31 law firms that were "most active and successful before the court."

The conclusion:

The Reuters examination of the Supreme Court's docket, the most comprehensive ever, suggests that the justices essentially have added a new criterion to whether the court takes an appeal--one that goes beyond the merits of a case and extends to the merits of the lawyer who is bringing it.

The results: a decided advantage for corporate America, and a growing insularity at the court. Some legal experts contend that the reliance on a small cluster of specialists, most working on behalf of businesses, has turned the Supreme Court into an echo chamber--a place where an elite group of jurists embraces an elite group of lawyers who reinforce narrow views of how the law should be construed.

December 8, 2014 in Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 3, 2014

Eleventh Circuit Finalizes Rejection of Constitutionality of Florida Drug Testing of Welfare Recipients

In its 54 page opinion today in Lebron v. Sec't Florida Dep't of Children & Families,  a unanimous panel of the Eleventh Circuit held that Florida Statute §414.0652 requiring drug testing of all persons who receive public benefits is unconstitutional.

Recall that a previous panel (of three different judges) had affirmed a district judge's grant of a preliminary injunction against the statute.  The district judge then entered a permanent injunction and this appeal followed.

F8637-01sToday's opinion holds that the statute violates the Fourth Amendment because Florida "failed to meet its burden of establishing a substantial special need to drug test all TANF applicants without any suspicion."  Importantly, the court also held that

the State cannot circumvent constitutional concerns by requiring that applicants consent to a drug test to receive TANF payments. When a government benefit is conditioned on suspicionless drug testing, the voluntariness of the program is properly viewed as a factor baked into the special needs reasonableness analysis, not as an exception to it.

The court rejected Florida's reliance "on unconstitutional conditions cases that arose in different contexts," such as Rust v. Sullivan, stating that  "the consent inquiry is included within the special needs analysis" in the Fourth Amendment context.

The court concludes:

the State cannot use consent of the kind exacted here -- where it is made a condition of receiving government benefits -- to wholly replace the special needs balancing analysis. We respect the State’s overarching and laudable desire to promote work, protect families, and conserve resources. But, above all else, we must enforce the Constitution and the limits it places on government. If we are to give meaning to the Fourth Amendment’s prohibition on blanket government searches, we must -- and we do -- hold that § 414.0652 crosses the constitutional line.

While Florida and its governor have been adamant in defending the constitutionality of mandatory drug-testing, the federal courts have been just as adamant that such drug-testing is unconstitutional.  But perhaps Florida will seek certiorari and a chance to validate this policy.

 

December 3, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Fourth Amendment | Permalink | Comments (0) | TrackBack (0)

Eleventh Circuit Denies Stay of Same-Sex Marriage Ban Injunction in Florida

In August Judge Robert Hinkle of the Northern District of Florida found in Brenner v. Scott that Florida's same-sex marriage bans in the constitution as Article I §27 and Florida Statutes §741.04(1) violated the Fourteenth Amendment. 

Today, an Eleventh Circuit panel consisting of Judges Frank Hull, Charles Wilson, and Aldaberto Jordon in a brief Order in Brenner v. Armstrong granted expedited treatment of a motion to extend the stay of the preliminary injunction, but denied the motion. 

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Elbert P. Tuttle Courthouse in Atlanta


The Order concluded:

The stay of preliminary injunctions entered by the District Court expires at the end of the day on January 5, 2015.

Thus, unless there is en banc review or a United States Supreme Court stay, same-sex marriages will begin in Florida in first days of the new year.

December 3, 2014 in Courts and Judging, Equal Protection, Family, Federalism, Fourteenth Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2014

Montana District Judge Follows Ninth Circuit: Declares State's Same Sex Marriage Ban Unconstitutional

In his 18 page Order in Rolando v. Fox, US District Judge Brian Morris enjoined Montana's laws banning same-sex marriage (Article XIII, section 7 of the Montana Constitution, and Montana Code Annotated section 40-1-103 and section 40-1-401) as unconstitutional under the Fourteenth Amendment's Equal Protection Clause.

The judge essentially found that the Ninth Circuit's decision in Latta v. Otter regarding same-sex marriage - - - inclusive of its decision to adhere to heightened scrutiny in SmithKline Beecham Corp. v. Abbott - - - was binding.  The court rejected the argument that the recent Sixth Circuit opinion in DeBoer v. Snyder changed Ninth Circuit precedent.

1024px-Collier's_1921_Montana

The judge, however, did discuss the state's asserted justifications, finding them with without merit and focusing on children.  The judge ended by recognizing "that not everyone will celebrate this outcome," but nevertheless that the "time has come for Montana to follow all the other states within the Ninth Circuit":  "Today Montana becomes the thirty-fourth state to permit same-sex marriage."

The judge did not stay the injunction.

November 20, 2014 in Courts and Judging, Equal Protection, Family, Fourteenth Amendment, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Friday, November 14, 2014

D.C. Circuit Upholds Contraception Opt-Out for Religious Nonprofits

The D.C. Circuit today upheld HHS accommodations to religious nonprofits that object to complying with contraception requirements under agency regs and the ACA. The ruling aligns with earlier rulings from the Sixth and Seventh Circuits and means that the accommodations stay on the books. (The case is not governed by Hobby Lobby, because the plaintiffs here challenge the accommodation, not the "contraception mandate" itself. Hobby Lobby had no accommodation option.)

The case represents yet another judicial attack against the ACA and its implementation. And this issue may eventually work its way (back) to the Supreme Court. (Notre Dame filed a cert. petition in October, after losing in the Seventh Circuit.)

The case is the latest challenge to HHS regulations that allow religious nonprofits to opt-out of the "contraception mandate" by filing a form with their insurer or a letter with HHS stating their religious objection to providing contraception. (The letter to HHS is the agency's regulatory answer to the Supreme Court's action this summer that enjoined the form and held that a religious nonprofit could instead file a letter with HHS.) Plaintiffs (religious nonprofits) argue that the accommodation itself violates the RFRA (among other things), because the accommodation "triggers" the provision of contraception by third parties.

The D.C. Circuit flatly--and quite thoroughly--rejected this claim. In sum:

We conclude that the challenged regulations do not impose a substantial burden on Plaintiffs' religious exercise under RFRA. All plaintiffs must do to opt out is express what they beleive and seek what they want via a letter or two-page form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations' compliance with law in the modern administrative state. Religious nonprofits that opt out are excused from playing any role in the provision of contraceptive services, and they remain free to condemn contraception in the clearest terms. The ACA shifts to health insurers and administrators the obligation to pay for and provide contraceptive coverage for insured persons who would otherwise lose it as a result of the religious accommodation.

The court held that the accommodation was merely a de minimis requirement and not a substantial burden--and therefore not subject to RFRA's strict scrutiny. "In sum, both opt-out mechanisms let eligible organizations extricate themselves fully from the burden of providing contraceptive coverage to employees, pay nothing toward such coverage, and have the providers tell the employees that their employers play no role and in no way should be seen to endorse the coverage." The court emphasized that RFRA "does not grant Plaintiffs a religious veto against plan providers' compliance with those regulations, nor the right to enlist the government to effectuate such a religious veto against legally required conduct of third parties."

The court said that even if the accommodation were a substantial burden, the court would uphold it under RFRA's strict scrutiny.  That's because "[a] confluence of compelling interests supports maintaining seamless application of contraceptive coverage to insured individuals even as Plaintiffs are excused from providing it." Examples: the benefits of planning for healthy births and avoiding unwanted pregnancy, and the promotion of equal preventive care for women. "The accommodation requires as little as it can from the objectors while still serving the government's compelling interests."

The court also clarified some important aspects of the way the accommodation works. For one, exercising the accommodation doesn't "trigger" anything; instead, it works to take the religious nonprofit entirely out of the contraception-provision business. For another, religious nonprofits' contracts with providers don't authorize or facilitate contraceptive coverage; the federal regs do. Finally, exercising the accommodation doesn't turn a religious nonprofit's plan into a "conduit for contraceptive coverage"; instead, it takes the the religious nonprofit out of the contraceptive business entirely.

 

November 14, 2014 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Thursday, November 13, 2014

Court Vacates Stay of Kansas Same-Sex Marriage Injunction

The Court has issued an Order vacating the temporary stay issued by Justice Sotomayor on Monday of the preliminary injunction of Judge Daniel Crabtree entered last week in Marie v. Moser regarding Kansas' same-sex marriage ban.

As we noted, Judge Crabtree stayed the injunction himself, reasoning that although the injunction seemed firmly established given Tenth Circuit precedent, Kansas raised many jurisdiction and justiciability issues.

The Order from the Court notes that "Justice Scalia and Justice Thomas would grant the application for stay," but there is no accompanying opinion.

November 13, 2014 in Courts and Judging, Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 12, 2014

South Carolina Federal Judge Declares State's Same-Sex Marriage Ban Unconstitutional

In a 26 page opinion today in Condon v. Haley, Judge Richard Mark Gergel held that South Carolina's same-sex marriage bans (by statute and state constitutional amendment) is unconstitutional.

Here is the gravamen of Judge Gergel's opinion:

This Court has carefully reviewed the language of South Carolina's constitutional and statutory ban on same sex marriage and now finds that there is no meaningful distinction between the existing South Carolina provisions and those of Virginia declared unconstitutional in Bostic.

753px-Flag-map_of_South_Carolina.svgRecall that the Fourth Circuit in Bostic v. Schaefer held that Virginia's same-sex marriage laws should be evaluated by strict scrutiny because marriage is a fundamental right; not surprisingly, the bans did not survive the standard.  Recall also that the United States Supreme Court denied certiorari. 

Moreover, Judge Gergel rejected the argument that  "same-sex couples should not look to the courts to protect their individual rights but to the 'usually reliable state democratic processes' for relief" as the Sixth Circuit's very recent opinion upholding state prohibitions of same-sex marriage declared, by noting that the Fourth Circuit rejected this same argument.

Judge Gergel did, however, dismiss Governor Nikki Haley as a defendant.  Judge Gergel noted that "simply being the state's chief executive sworn to uphold the laws is not sufficient" and there is "little evidence to support an argument that Defendant Haley has taken enforcement action or engaged in other affirmative acts to obstruct Plaintiffs' asserted fundamental right to marry. "  Judge Gergel specifically distinguished Bowling v. Pence, in which a federal judge reversed a prior order dismissing the Governor of Indiana as a defendant after he took "affirmative action to enforce the statute."

Judge Gergel issued a temporary stay of the injunction until November 20, 2014.

 

November 12, 2014 in Courts and Judging, Due Process (Substantive), Eleventh Amendment, Equal Protection, Family, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Monday, November 10, 2014

Sotomayor Stays Kansas Federal Judge's Same Sex Marriage Injunction

In an Order late today, Justice Sotomayor stayed the preliminary injunction of Judge Daniel Crabtree entered last week in Marie v. Moser regarding Kansas' same-sex marriage ban.

As we noted, Judge Crabtree stayed the injunction himself, reasoning that although the injunction seemed firmly established given Tenth Circuit precedent, Kansas raised many jurisdiction and justiciability issues. 

As is usual, there is no reasoning supporting the Supreme Court stay.  Here's the text of Justice Sotomayor's opinion:

UPON CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the preliminary injunction entered by the United State District Court for the District of Kansas on November 4, 2014, is hereby stayed pending receipt of a response, due on or before Tuesday, November 11, 2014, by 5 p.m. ET, and further order of the undersigned or of the Court.

Perhaps we can expect another Order from Justice Sotomayor late on Tuesday?

 Justice Sonia Sotomayor by Donkey Hotey
Caricature of Justice Sonia Sotomayor by Donkey Hotey via

 

 UPDATE here.

November 10, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, November 7, 2014

Missouri Federal Judge Declares State's Same-Sex Marriage Ban Unconstitutional

A day after the Sixth Circuit's divided decision upholding same-sex marriage bans in several states, and thus creating a circuit split (with the Supreme Court having denied certiorari to the Seventh, Tenth, and Fourth Circuit opinions holding to the contrary), United States District Judge Ortrie D. Smith of Missouri (and in the Eighth Circuit) has rendered an opinion in Lawson v. Kelly, finding Missouri's same-sex marriage ban unconstitutional.

Judge Smith's 18 page opinion agrees with the Sixth Circuit majority in one respect: The Supreme Court's opinion in Windsor v. United States holding DOMA unconstitutional is not dispositive.  However, Judge Smith also states that the Court's 1972  dismissal in Baker v. Nelson is not dispositive. 

721px-Collier's_1921_MissouriJudge Smith holds that under Eighth Circuit precedent, sexual orientation "is not a suspect class and that classifications based on sexual orientation are not subject to heightened review of any kind."  On that basis, he grants judgments on the pleadings to the defendants.

However, Judge Smith holds that the same-sex marriage bans are unconstitutional under the Fourteenth Amendment.  First, Judge Smith concludes that marriage is a fundamental right under the Due Process Clause, even as he notes that not all regulations of marriage are subject to strict scrutiny.  Following Zablocki v. Redhail, however, he applies the "interfere directly and substantially with the right to marry" standard and concludes that the "prohibition must be examined with strict scrutiny, and viewed in that light the restriction fails to satisfy the Due Process Clause’s dictates."

Additionally, Judge Smith analyzes the same-sex marriage ban under the Equal Protection Clause as a classification based on gender:

The restriction on same-sex marriage is a classification based on gender. The State’s “permission to marry” depends on the gender of the would-be participants. The State would permit Jack and Jill to be married but not Jack and John. Why? Because in the latter example, the person Jack wishes to marry is male. The State’s permission to marry depends on the genders of the participants, so the restriction is a gender-based classification.

As Judge Smith avers, "Restrictions based on gender are subject to intermediate scrutiny."  He finds the standard is not satisfied:

The State has not carried its burden. Its sole justification for the restriction is the need to create rules that are predictable, consistent, and can be uniformly applied. Assuming this is a valid justification for a restriction, there is no suggestion as to why the gender-based classification is substantially related to that objective. A rule that ignores gender would be just as related to that objective and be just as easy to apply (and arguably would impose less of a burden on the Recorders of Deeds because they would not have to conduct any gender-based inquiry whatsoever). Regardless, administrative convenience is not a valid reason to differentiate between men and women.

Judge Smith therefore concluded that "section 451.022 of the Revised Missouri Statutes and Article I, section 33 of the Missouri Constitution, and any other provision of state law that precludes people from marrying solely because they are of the same gender violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment" and enjoined state officials from declining to issue same-sex marriage licenses although the Judge stayed the "effects of the judgment" until the judgment is final.

 

November 7, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Twenty Years of South African Constitutionalism: Conference

November 14- 16, 2014 at New York Law School.

The full program is here.

 

ZA Conference

November 7, 2014 in Comparative Constitutionalism, Conferences, Courts and Judging, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, November 6, 2014

Divided Sixth Circuit Creates Circuit Split in Same-Sex Marriage Litigation

The Sixth Circuit's opinion today in DeBoer v. Snyder upheld the constitutionality of the same-sex marriage bans in several states, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee.

The majority opinion, authored by Judge Jeffrey Sutton and joined by Judge Deborah Cook begins by invoking judicial restraint and democratic processes:  "This is a case about change—and how best to handle it under the United States Constitution."   Such an opening may not be surprising given Judge Sutton's published views such as this from a Harvard Law Review piece favoring "a return to a world in which the state courts and state legislatures are on the front lines when it comes to rights innovation."

Dissenting, Judge Martha Craig Daughtrey, begins with a scathing assessment of Judge Sutton's opinion:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment.

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For the majority, the operative precedent is Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question."  The opinion distinguishes Windsor v. United States as limited to the federal government.  The opinion also rejects  the relevance of the Supreme Court's denial of certiorari from circuit decisions finding same-sex marriage bans unconstitutional: "The Court’s certiorari denials tell us nothing about the democracy-versus-litigation path to same-sex marriage, and they tell us nothing about the validity of any of these theories."

The majority also rejects the persuasive value of the opinions from the other circuits, again returning to the judicial restraint perspective:

There are many ways, as these lower court decisions confirm, to look at this question: originalism; rational basis review; animus; fundamental rights; suspect classifications; evolving meaning. The parties in one way or another have invoked them all. Not one of the plaintiffs’ theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.

In considering rational basis review (under either equal protection or due process), the majority finds that states can rationally incentivize marriage for heterosexual couples who "run the risk of unintended offspring" and that states might rationally chose to "wait and see" before changing the definition of marriage.

In considering animus (which might heighten the rational basis review to rational basis "plus"), the majority distinguishes both City of Cleburne v. Cleburne Living Center and Romer v. Evans, stating that the state-wide initiatives banning same-sex marriage merely "codified a long-existing, widely held social norm already reflected in state law," rather than being novel acts of animus.  Indeed, the majority states

What the Court recently said about another statewide initiative that people care passionately about applies with equal vigor here: “Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.” Schuette v. Coal. to Defend Affirmative Action[BAMN].

Moreover, in another portion of the opinion the majority addresses the possibility of heightened review under the Equal protection Clause based on level of scrutiny to be applied to sexual minorities and invokes Carolene Products.  For the majority, the issue of political power is the key rationale for denying heightened scrutiny:

The Fourteenth Amendment does not insulate influential, indeed eminently successful, interest groups from a defining attribute of all democratic initiatives—some succeed, some fail—particularly when succeeding more and failing less are in the offing.

And in considering fundamental right to marriage under the Due Process Clause, the majority concluded marriage is not a fundamental right, distinguishing Loving v. Virginia as a case that "addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage."  Moreover, if marriage were a fundamental right, this would call into question laws regarding divorce, polygamy, and age requirements.

The majority also rejects the "right to travel" argument as a rationale for recognizing valid out of state marriages.

Additionally, the majority articulates its constitutional interpretative strategies. In section B, entitled "Original meaning" and in Section G, entitled "Evolving meaning," the majority is very clear that one theory is more consistent with its view of judicial restraint.

The Sixth Circuit - - - as many predicted - - - has now created a split in the circuits on the question of the constitutionality of same-sex marriage bans.  The plaintiffs, who prevailed in the district court cases below, are sure to petition for certiorari to the United States Supreme Court, perhaps bypassing seeking en banc review by the Sixth Circuit.

 

November 6, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fundamental Rights, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Monday, October 20, 2014

First Circuit Finds Billboard Company has Standing in First Amendment Challenge to Massachusetts Scheme

Reversing the district judge, a unanimous panel of the First Circuit held that a billboard company had standing to challenge the Massachusetts regulatory scheme in Van Wagner Boston LLC v. Davey.  The opinion, authored by Judge Bruce Selya who is known for his ambitious language, concludes that

the complaint plausibly alleges that the plaintiffs are subject to a regulatory permitting scheme that grants an official unbridled discretion over the licensing of their expressive conduct and poses a real and substantial threat of censorship. No more is exigible to give the plaintiffs standing to proceed with their challenge.

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A Van Wagner Billboard in Boston via its website

The First Circuit largely relied on City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) in which the Court held unconstitutional a municipal scheme giving the mayor the power to grant or deny applications for annual permits to publishers to place their newsracks on public property; the Court allowed the publishers to proceed with the facial challenge although they had not yet applied for a permit.  The First Circuit thus rejected Massachusetts' claim that the company could not show injury in fact because the company "had applied for over seventy permits without having a single application denied."  For the court, it was "too optimistic" to think that the "censorship risks are only theoretical."  Instead, it noted that the company "is a large, repeat player in the world of outdoor advertising" and "it may plausibly fear incurring the Director's ire any time an existing or potential client seeks to display what might be deemed a controversial message."

The First Circuit also rejected Massachusetts' argument that the "case implicates strictly commercial speech" and thus a lesser standard should apply:

The factual premise of the Commonwealth's thesis is simply wrong. It confuses a recognized category of First Amendment analysis — commercial speech simpliciter — with something quite different: those who have a commercial interest in protected expression.

The court ends its opinion with the statement that it expresses "no opinion on the merits of Van Wagner's First Amendment claim." 

To say more about standing would be supererogatory. The short of it is that Van Wagner has plausibly alleged that it is subject to a regulatory permitting scheme that chills protected expression by granting a state official unbridled discretion over the licensing of its expressive conduct. It follows — as night follows day — that Van Wagner has standing to mount a facial challenge to that regulatory permitting scheme.

The court mentioned but stated it was not considering Massachusetts' argument that the scheme's numerous factors howed that the discretion was not unbridled but properly cabined.  The district judge will now be taking up this very question under First Amendment doctrine. 

October 20, 2014 in Courts and Judging, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0) | TrackBack (0)

Friday, October 17, 2014

Arizona Federal Judge Holds State's Same-Sex Marriage Ban Unconstitutional

Judge John Sedwick's  opinion in Connolly v. Jeanes is a mere four pages, noting that the requirement of  a "lengthy and detailed opinion" is now obviated because as the district court is bound by the Ninth Circuit's opinion in Latta v. Otter.  As to a stay, an "appeal to the Ninth Circuit would be futile" and given the Supreme Court's denial of petitions for writs of certiorari, it is "also clear" that the "High Court will turn a deaf ear on any request for relief from the Ninth Circuit's decision." 

Despite the recent activity by Justice Kennedy including the stay and modified stay and vacated stay of the Ninth Circuit's decision, the Attorney General Tom Horne (pictured) agreed in a statement (video here) and cited his ethical duties under Rule 11 and not to "waste the taxpayers' money."  He issued a  letter to the clerks "effective immediately." 

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October 17, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

Supreme Court Vacates Fifth Circuit Stay of Texas HB 2 Injunction

The controversial Texas law limiting abortion access known as HB 2, which began law despite a well-publicized filibuster by state senator Wendy Davis, is now effectively enjoined  - - - in part - - -by the United States Supreme Court in its Order in Whole Woman's Health Center v. Lakey.

Here's the entire text:

The application to vacate stay of final judgment pending appeal presented to Justice Scalia and by him referred to the court is granted in part and denied in part. The Court of Appeals’ stay order with reference to the district court’s order enjoining the admitting-privileges requirement as applied to the McAllen and El Paso clinics is vacated. The Court of Appeals’ stay order with reference to the district court’s order enjoining the ambulatory surgical center requirement is vacated. The application is denied in all other respects.

Justice Scalia, Justice Thomas, and Justice Alito would deny the application in its entirety.

To recap: the United States Supreme Court is vacating the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.Recall also that this is an as-applied challenge.  A panel of the Fifth Circuit in March upheld the admitting privileges provision after it had issued a stay of Judge Yeakel's decision enjoining the provision as unconstitutional.

October 15, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Gender, Medical Decisions, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

Alaska Same-Sex Marriage: Court Declares Same-Sex Marriage Ban Unconstitutional

On Sunday afternoon before a Monday federal holiday, federal district judge Timothy Burgess of the District of Alaska issued an  opinion in Hamby v. Parnell  and immediately enjoined officials of the state of Alaska from enforcing either the statute or state constitutional provision barring same-sex marriages. 

800px-AlaskaMap1895Judge Burgess' 25 page opinion predictably relied upon the Ninth Circuit's decision in Latta v. Otter concluding that the same-sex marriage bans of Idaho and Nevada violated the Equal Protection Clause and using the Circuit's heightened scrutiny standard for sexual orientation.  Judge Burgess also found that the Alaska laws violated the Due Process Clause because they infringe on the "fundamental right to choose whom to marry." 

In the Due Process discussion,  Judge Burgess has an interesting invocation of originalism:

In Lawrence  [v. Texas],  the critical mistake identified by the Supreme Court in its earlier reasoning [in Bowers v. Hardwick]  is the same error made by Defendants in this case: in the desire to narrowly define the rights protected by the Fourteenth Amendment, they “fail[] to appreciate the extent of the liberty at stake.”

Our forefathers wrote the Bill of Rights hundreds of years ago and could not have predicted “the components of liberty in its manifold possibilities” as we see today. As the Supreme Court articulately explained, “those who drew and ratified the Due Process Clause[]...knew times can blind us to certain truths and later generations can see that laws once necessary and proper in fact only serve to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” The Plaintiffs in this case do not ask the Court to recognize an entirely new fundamental right to same-sex marriage; rather, Plaintiffs wish to participate in the existing liberty granted to other couples to make a deeply personal choice about a private family matter.

 Alaska has filed an Emergency Motion for Stay Pending Appeal, arguing in part that there is a "reasonable likelihood the Ninth Circuit will rehear Latta en banc and thus vacate the panel's decision."  This is largely based on the Ninth Circuit's application of heightened scrutiny in the panel opinion. 

But recall that this heightened scrutiny is based on SmithKline Beecham Corp. v. Abbott Labsdecided 10 months ago and which was denied a rehearing en banc. 

And recall also that while Justice Kennedy of the United States Supreme Court granted a stay of Latta, he later clarified that the stay was only as to Idaho and not Nevada (although the Ninth Circuit's heightened scrutiny standard was applied to the laws of both states), and the stay vacated on Friday.

Additionally, Alaska argues that "conditions compelling Supreme Court review of this issue could easily develop very soon."  Recall that the Supreme Court denied certiorari of the decisions from three circuits finding same-sex marriage bans unconstitutional.  As Alaska argues:

The Sixth Circuit heard argument in early August regarding cases14 from four states (Michigan, Kentucky, Tennessee, and Ohio) and could issue a decision at any time, and the Fifth Circuit has expedited argument of Louisiana and Texas cases and could issue a decision by end of this year. Accordingly, circumstances are likely to develop in which the Supreme Court is virtually obligated to review the issue.

Yet given the lack of endurance of previous stays, there is little reason to believe Alaska would be considered a different case.

 

October 14, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, October 10, 2014

Update: Justice Kennedy Kennedy Vacates Previous Stay Orders on Ninth Circuit Same-Sex Marriage Case

Updated:

On Monday, the United States Supreme Court denied certiorari to the Fourth, Seventh, and Tenth Circuits that had held that an array of states' same-sex marriage ban statutes were unconstitutional.

On Tuesday, the Ninth Circuit issued its opinion holding that the same-sex marriage bans in Idaho and Nevada were unconstitutional, on substantially similiar reasoning to the cases from the other circuits.

On Wednesday, in a brief Order, Justice Anthony Kennedy, as Circuit Court Justice, entered a stay of the mandate of the Ninth Circuit opinion in Otter v. Lata. Here's the text of Kennedy's Order:

UPON CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the mandate of the United States Court of Appeals for the Ninth Circuit, case Nos. 12-17668, 14-35420 & 14-35421, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Thursday, October 9, 2014, by 5 p.m.

While the Ninth Circuit applies intermediate scrutiny in the equal protection analysis, this does not seem to be sufficient to warrant a stay. 

What does Justice Kennedy have in mind?

kennedy
Caricature of Justice Kennedy by Donkey Hotey via

UPDATE: Later on Wednesday, Justice Kennedy issued a second Order clarifying that the stay applies only to Idaho and not to Nevada.

Here's the text of that Order:

UPON FURTHER CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the portion of the order issued on this date entering a stay of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 12-17668 is hereby vacated. The stay entered with respect to the Ninth Circuit’s mandate in case Nos. 14-35420 & 14-35421, shall remain in effect pending further order of the undersigned or of the Court.

 And on Friday, October 10, Justice Kennedy issued an Order denying the stay and vacating his previous orders.  Here's the text:

The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated.

 

October 10, 2014 in Courts and Judging, Current Affairs, Family, Fourteenth Amendment, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 8, 2014

Supreme Court Justice Anthony Kennedy Stays Mandate of Ninth Circuit in Same-Sex Marriage Case

On Monday, the United States Supreme Court denied certiorari to the Fourth, Seventh, and Tenth Circuits that had held that an array of states' same-sex marriage ban statutes were unconstitutional.

On Tuesday, the Ninth Circuit issued its opinion holding that the same-sex marriage bans in Idaho and Nevada were unconstitutional, on substantially similiar reasoning to the cases from the other circuits.

On Wednesday, in a brief Order, Justice Anthony Kennedy, as Circuit Court Justice, entered a stay of the mandate of the Ninth Circuit opinion in Otter v. Lata. Here's the text of Kennedy's Order:

UPON CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the mandate of the United States Court of Appeals for the Ninth Circuit, case Nos. 12-17668, 14-35420 & 14-35421, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Thursday, October 9, 2014, by 5 p.m.

While the Ninth Circuit applies intermediate scrutiny in the equal protection analysis, this does not seem to be sufficient to warrant a stay. 

What does Justice Kennedy have in mind?

kennedy
Caricature of Justice Kennedy by Donkey Hotey via

UPDATE: Later on Wednesday, Justice Kennedy issued a second Order clarifying that the stay applies only to Idaho and not to Nevada.

Here's the text of that Order:

UPON FURTHER CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the portion of the order issued on this date entering a stay of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 12-17668 is hereby vacated. The stay entered with respect to the Ninth Circuit’s mandate in case Nos. 14-35420 & 14-35421, shall remain in effect pending further order of the undersigned or of the Court.

 Further updated on October 10 here.

October 8, 2014 in Courts and Judging, Equal Protection, Family, Fourteenth Amendment, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, October 6, 2014

Supreme Court Denies Certiorari to Same-Sex Marriage Petitions

In its Order today, the Court denied certiorari to a raft of cases, including the cases seeking review of opinions in which appellate courts found bans on same-sex marriage to be unconstitutional.

These cases are from three circuits:

From the Seventh Circuit:  Bogan v. Baskin and  Walker v. Wolf,  decided in September, regarding the same-sex marriage bans in Indiana and Wisconsin;

From the Tenth Circuit,  Herbert v. Kitchen, the opinion issued in June regarding Utah's prohibition and Smith v. Bishop, extending Herbert's reasoning to the ban in Oklahoma; and

From the Fourth Circuit's Bostic v. Rainey, regarding Virginia's prohibition there were three petitions, McQuigg v. Bostic, Schaefer v. Bostic, and Rainey v. Bostic.  The Fourth Circuit has already issued a Mandate, lifting the stay. 

 

 

 

 

 

October 6, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Gender, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)