Monday, May 19, 2014

Oregon District Judge Declares Same-Sex Marriage Ban Unconstitutional

Joining a decided trend which we last discussed here and here, today Oregon District Judge Michael McShane declared unconstitutional the state’s same-sex marriage prohibition in Article 15 of the state constitution. Judge McShane’s 26 page  opinion in Geiger v. Kitzhaber concludes that because “Oregon’s marriage laws discriminate on the basis of sexual orientation without a rational relationship to any legitimate government interest, the laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.”

275px-OR_2004_m36.svg
voting in 2004 ballot measure defining marriage as man/woman only: red is no; green is yes; dark green is yes by 2/3 or more; via

Judge McShane noted that the state defendants “concede that Oregon's marriage laws banning same-gender marriage are unconstitutional and legally indefensible, but state they are legally obligated to enforce the laws until this court declares the laws unconstitutional,” and thus, the case “presents itself to this court as something akin to a friendly tennis match rather than a contested and robust proceeding between adversaries.”  However, McShane did not find (or analyze) any Article III “case or controversies” issues, or address standing (including defendant standing).

Judge McShane notes that last term’s decision in Windsor v. United States  finding DOMA unconstitutional

may be distinguished from the present case in several respects. Yet, recounting such differences will not detract from the underlying principle shared in common by that case and the one now before me. The principle is one inscribed in the Constitution, and it requires that the state's marriage laws not "degrade or demean" the plaintiffs in violation of their rights to equal protection.

Unlike Justice Kennedy’s opinion for the Court in Windsor, however, Judge McShane’s opinion in Geiger is quite specific regarding the level of scrutiny being applied: rational basis.  McShane rejected two arguments for intermediate scrutiny.  First, he rejected the argument based upon a gender classification, concluding that the “targeted group here is neither males nor females, but homosexual males and homosexual females” and thus the state's marriage laws discriminate on the basis of sexual orientation, not gender.  Second, he rejected the applicability of the Ninth Circuit’s opinion in SmithKline Beecham Corp. v. Abbott Labs, reasoning that the panel's decision in SmithKline is not yet a truly final and binding decision given that the mandate has not issued pending en banc review. (Recall that last week, a federal district judge in Idaho found "SmithKline’s examination of Windsor is authoritative and binding").

Judge McShane then engaged in the by now familiar analysis of government interests - - - including protecting traditional marriage and promoting responsible procreation - - - and their relationship to the same-sex marriage prohibition.  Like his fellow judges in recent cases, Judge McShane found rational basis is not satisfied.

And like some of his fellow judges, McShane shared his personal perspective.  McShane's provided his in an extended conclusion:

I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage (and thereby expanding the benefits and rights that accompany marriage) to gay and lesbian families. It was these same objections that led to the passage of Measure 36 in 2004 [the ballot measure defining marriage as only between a man and a woman]. Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion,
a mental disorder, or a mortal sin. I remember that one of the more popular playground games of my childhood was called "smear the queer" and it was played with great zeal and without a moment's thought to today' s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing. It was but 1~86 when the United States Supreme Court justified, on the basis of a"millennia of moral teaching," the imprisonment of gay men and lesbian women who engaged in consensual sexual acts. Bowers, 478 U.S. at 197 (Burger, C.J., concurring), overruled by Lawrence, 539 U.S. at 578. Even today I am reminded ofthe legacy that we have bequeathed today's generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says "dad ... that is so gay."

It is not surprising then that many of us raised with such a world view would wish to protect our beliefs and our families by turning to the ballot box to enshrine in law those traditions we have come to value. But just as the Constitution protects the expression of these moral viewpoints, it equally protects the minority from being diminished by them.

It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading "God Hates Fags" make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities.

My decision will not be the final word on this subject, but on this issue of marriage I am struck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.

Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise.

 Judge McShane's opinion ends with a exhortation perhaps more befitting religious rhetoric than legal analysis.

 

May 19, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Fourth Amendment, Interpretation, Jurisdiction of Federal Courts, Opinion Analysis, Reproductive Rights, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Sunday, May 18, 2014

Court Temporarily Stops Force-Feeding at Guantanamo

Judge Gladys Kessler (D.D.C.) on Friday temporarily enjoined the government from force-feeding Abu Wa'el Dhiab, a hunger-striking Guantanamo detainee.  Judge Kessler's order also requires the government to produce medical records and videotapes of Dhiab's "forcible cell extractions" for the purpose of "enteral feedings."  Judge Kessler will preside over a status conference on May 21 to work some of this out.

This isn't the first time Judge Kessler ruled on the case.  In her earlier ruling, on July 10, 2013, she held that 28 U.S.C. Sec. 2241(e)(2) deprived the court of jurisdiction to hear a claim over a Guantanamo detainee's conditions of confinement.  She was also highly critical of force feedings in that ruling, however, and telegraphed her likely ruling on the merits, should it ever come to the merits.

It did come to the merits after the D.C. Circuit ruled that Guantanamo detainees could challenge the conditions of their confinement under 28 U.S.C. 2241(e)(2).  After that ruling, Dhiab's case came back to Judge Kessler, leading to Friday's ruling.

Judge Kessler's ruling is only temporary.  But if this ruling and her prior ruling (in the first round) are any indication, she's almost certain to rule against the practice. 

May 18, 2014 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Jurisdiction of Federal Courts, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, May 16, 2014

Arkansas Supreme Court: Judge's Same Sex Marriage Order Stayed

The Arkansas Supreme Court's Order in Smith v. Wright grants a stay of the injunction against enforcing the ban on same-sex marriages.

Recall that last Friday, Circuit Judge Charles Piazza in Wright v. Arkansas declared unconstitutional Arkansas Act 144 and Arkansas Amendment 83, both of which define marriage as limited to one man and one woman. 

Judge Piazza later issued a clarifying order and there have been numerous procedural matters to resolve.  Today's order by the Arkansas Supreme Court Justices (pictured below) grants the request for an emergency stay without opinion. 

A full appeal will presumably follow.

SCgroup-new

 

May 16, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Friday, May 9, 2014

Arkansas State Judge Declares Same-Sex Marriage Ban Unconstitutional

In an opinion issued late today in Wright v. Arkansas, Circuit Judge Charles Piazza declared unconstitutional Arkansas Act 144 and Arkansas Amendment 83, both of which define marriage as limited to one man and one woman.  The decision rests on the  Fourteenth Amendment's Equal Protection and Due Process Clauses, as well as on ARK. Const., art 2 §2, with equality and liberty provisions.  

The relatively brief opinion - - - 13 pages single spaced - - - tracks familiar ground, highlighting Windsor v. United States and the post-Windsor cases, emphasizing Kitchen v. Herbert and Bishop v. United States.  Judge Piazza also points to Justice Scalia's dissenting language as other cases have done; Judge Piazza bolsters his finding that "tradition" is not a legitimate state interest by stating:

And, as Justice Scalia has noted in dissent, " 'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples." Lawrence, 539 U.S. at 601 (Scalia, J., dissenting).

741px-Collier's_1921_Arkansas
Judge Piazza also confronts possible charges of judicial activism with a reference to Dred Scott v. Sandford (1856), including an extensive quote from Justice Taney's opinion, before moving onto Loving v. Virginia and Griswold v. Connecticut.  He also relies on Arkansas' precedent:

The Arkansas Supreme Court has previously addressed the right to privacy as it involves same-sex couples. ln Jegley v. Picado, the Arkansas Supreme Court struck down the sodomy statute as unconstitutional in violating Article 2, §2 and the right to privacy. 349 Ark. 600, 638 (2002). Justice Brown, in Arkansas Dep't of Human Services v. Cole, noted "that Arkansas has a rich and compelling tradition of protecting individual privacy and that a fundamental right to privacy is implicit in the Arkansas Constitution." 2011 Ark. 145, 380 S.W. 3d. 429, 435 (2011) (citing Jegley, id. at 632). The Arkansas Supreme Court applied a heightened scrutiny and struck down as unconstitutional an initiated act that prohibited unmarried opposite-sex and same-sex couples from adopting children. Id at 442. The exclusion of same-sex couples from marriage for no rational basis violates the fundamental right to privacy and equal protection as described in Jegley and Cole, supra. The difference between opposite-sex and same-sex families is within the privacy of their homes.

The judge did not stay the opinion; it may be that some attorneys for the state of Arkansas will have a very busy weekend.

{UPDATE here}

May 9, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, May 1, 2014

Getting it Wrong: Even Supreme Court Justices Do It and What that Means for Grading Students

Grading, marking, and giving feedback on student exams, papers, and projects can be wearing, which perhaps explains why professors can succumb to the temptation to bemoan student "bloopers" and mistakes. 

But at the end of this semester,  a mistake in Justice Scalia's dissent in EPA v. EME Homer City Generation provides some perspective.

From the original opinion, here's the passage in Justice Scalia's dissent:

[Section] D. Plus Ça Change:
EPA’s Continuing Quest for Cost-Benefit Authority

The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the alloca­tion problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Re­spondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is not for EPA or this Court to determine.

This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmak­ing—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect. . . .

[emphasis added]

And from the current opinion, here's the corrected passage:

[Section] D. Our Precedent

The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the allocation problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Respondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is for Congress, not this Court, to determine.

This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001), confronted the contention that EPA should consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmaking—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect.

[empasis added]

Justice Scalia misidentified the party that argued on behalf of considering costs in Whitman v. American Trucking - - - an opinion that Justice Scalia authored in 2001 - - - and reversed it.  Indeed, the EPA opposed considering costs in Whitman v. American Trucking.  

DeweydefeatsThe mistake has attracted attention: TPM labels  it an "epic blunder,"  Salon calls it an "embarrassing error," and WSJ says it was "cringeworthy" and "unusually glaring."

Why the mistake?  Blame law clerks or sloppiness.  Recite "to err is human."  Or perhaps the mistake simply fit with the dissent's "shadow argument" (the EPA has been on a quest to expand its authority, as conveyed in the subtitle to the section) and so the actual fact became misremembered or overlooked.

But whatever the possible explanations, it's a good reminder for professors as we read "mistakes" by students who are, afterall, students, and do not have law clerks, proofreaders, years of experience, the highest position in the legal field, or the ability to correct mistakes after the final version of the exam or paper is submitted. 

 

May 1, 2014 in Courts and Judging, Current Affairs, News, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Friday, April 25, 2014

Oral Argument Preview: Employee Speech at the Supreme Court and the Amicus Brief of Law Professors

As we explained when certiorari was granted in Lane v. Franks, the case involves a public employee's First Amendment rights in the context of retaliation and raising questions about the interpretation of Garcetti v. Ceballos.  My preview of Monday's oral argument is at SCOTUSBlog here. 

The Brief of Law Professors as Amici Curiae in Support of the Petitioner, the employee Edward Lane, available on ssrn, advances two basic arguments. 

Witness_stand_in_a_courtroom

The first argument is essentially that the Eleventh Circuit's opinion was a clearly erroneous expansion of Garcetti to include Lane's subpoened testimony in a criminal trial.  Here's an especially trenchant paragraph:

But the Garcetti Court took great pains to distinguish Mr. Ceballos from Mr. Pickering [in Pickering v. Board of Education (1968)], who spoke about what he observed and learned at his workplace and identified himself as a teacher in doing so, and Ms. Givhan [in Givhan v. Western Line Consolidated School District (1979)], who spoke to her own supervisors about what she observed at her workplace and did so while at work. Neither of these employees could have prevailed if any speech they would not have made but for their employment were excluded from the First Amendment’s protections. The sole fact distinguishing Mr. Ceballos from these other two defendants was that neither Mr. Pickering nor Ms. Givhan was required by their employment contracts to engage in the speech for which they were punished. Petitioner was not required by his job duties to testify in court, so his speech is as protected as Ms. Givhan’s and Mr. Pickering’s.

(emphasis in original).  There are similar arguments in the merits briefs, but advancing this doctrinal clarity in the law professors' brief is not misplaced, given that the Eleventh Circuit's summary opinion had so little specific analysis. 

Perhaps more common to an amicus brief are the policy arguments raised here regarding the importance of protecting testimony by public employees from retaliation by their government employers.  The brief's "judicial integrity" argument seeks to draw an interesting parallel, arguing it is

crucial that public employees be able to speak freely and truthfully about government malfeasance so that the judicial process is not distorted. Distortion of the litigation process occurs when public employees do not feel free to testify in various legal proceedings for fear of losing their jobs. This Court expressed analogous concerns in Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), where the Court struck down as violative of the First Amendment a federally imposed restriction prohibit- ing Legal Services Corporation (“LSC”)-funded attorneys, as a condition of the receipt of federal funds, from challenging the legality or constitutionality of existing welfare laws. . . . No less than in Velazquez, “[t]he restriction imposed by the [lack of protection for public employee testimonial speech] threatens severe impairment of the judicial function.” Id. at 546.

The brief argues in favor of a bright line rule that testimony is "citizen speech" and thus protected by the First Amendment.  Whether the line should be so bright might be a topic at oral argument given the arguments in the other briefs.

The named authors of the law professors brief, ConLawProfs  Paul Secunda, Scott Bauries, and Sheldon Nahmod, and the signatories, provide a terrific model of "engaged scholarship" and advocacy, and all in approximately 25 pages.

April 25, 2014 in Courts and Judging, First Amendment, Scholarship, Speech, Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2014

India's Supreme Court Recognizes Transgender Constitutional Rights of Equality as "Third Gender"

In its opinion National Legal Services v. India, the Supreme Court of India has recognized the constitutional rights of transgender persons, including the right not to be denominated as either "male" or "female." 

 The opinion by K.S. Radhakrishnan begins with an invocation of the "trauma, agony and pain which the members of Transgender community undergo" but rather quickly also invokes the cultural roots and importance of the community: "TG Community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong historical presence in our country in the Hindu mythology and other religious texts." 

436px-Constitution_of_IndiaThe judgment rests on an interpretation of several provisions of the Constitution of India, including Article 14 (equality before law); Article 15 (prohibition of discrimination on the basis of various grounds, including sex); Article 16 (equality of opportunity in public employment, including sex); Article 19 (including freedom of expression); and Article 21 (protection of life and personal liberty).  The judgment engaged in some originalist reasoning that broadly interpreted "sex" to include sex-stereotyping:

Constitution makers, it can be gathered, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders. Both gender and biological attributes constitute distinct components of sex. Biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes include one’s self image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of ‘sex’ under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female.

Given this interpretation, the Court not suprisingly ruled

We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.

The Court has some interesting discussions of dress and grooming as an aspect of gender which included references to US cases and is further discussed here. 

The Court also specifically disavowed any relationship between its present judgment in National Legal Services v. India and the controversial opinion Koushal v. NAZ Foundation decided in December in which the Court - - - or as the Court states here "A Division Bench of this Court" reversed the 2009 decision of the Delhi High Court that §377 of the Indian Penal Code was unconstitutional under the India Constitution and upheld India's sodomy law as constitutional:

we express no opinion on it [Kousal] since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation.

In a separate judgment, A.K. Sikiri did not mention the sodomy decision in Koushal v. Naz Foundation, but the judgment's expansive rhetoric could be read as an implicit disagreement with that decision as well as serving as a further butressing of today's judgment.  The concurring opinion elaborated on the importance of TG persons and communities to India's culture. It referenced Immanuel Kant, John Rawls, Amartya Sen as providing the "jurisprudential basis for doing justice to the Vulnerable Groups which definitely include TGs."  It explicitly stated the "dynamic" and "living character" of the Constitution and its interpretation.  It considered judicial review in the context of democracy (including, implicitly, "sexual democracy") and decidedly opined that it is the role of the judiciary to "ensure access to justice to the marginalized section of the society," and that undoubtedly "TGs belong to the unprivileged class which is a marginalized section."

The judgment not only requires the government to recognize a "third gender" and to grant "legal recognition of their gender identity such as male, female or as third gender," but also directs the government to take positive steps in education, health provisions, and "seriously address" various problems. 

April 15, 2014 in Comparative Constitutionalism, Courts and Judging, Due Process (Substantive), Equal Protection, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)

Friday, April 11, 2014

Circuit Says Magistrates Can't Rule on 2255 Motions

The Eleventh Circuit ruled this week in Brown v. U.S. that a magistrate judge lacked authority to enter final judgment on a criminal defendant's motion to vacate his sentence. 

The case revisits, but then dodges, the issue whether a magistrate's ruling on a motion under 28 U.S.C. 2255 violates Article III.

The court said that the Magistrate Act, 28 U.S.C. 636(c), which authorizes magistrates, with the consent of the parties, to enter a final judgment on any "civil matter," did not authorize a magistrate to enter a final judgment on a Section 2255 motion to vacate a sentence.  While the court recognized a Section 2255 motion was a civil matter, it said that Section 2255 wasn't a "civil matter" for purposes of Section 636(c).

Why?  According to the court, because to so conclude could result in a violation of Article III.

The court recognized that Section 636(c) is constitutional on its own--that is, that magistrates are constitutional in "civil matters."  But it said that special problems with a magistrate ruling on a Section 2255 motion made Section 636(c) constitutionally suspect.  In particular, when a magistrate enters a final judgment on a Section 2255 motion, that magistrate sits "in a quasi-appellate capacity, with the power to vacate the judgment the district court entered in the case."  "It is axiomatic that non-Article III judges [magistrates] may not revise or overturn Article III judgments."  Moreover, if a magistrate were to enter a final judgment on a Section 2255 motion, there's no procedure for district court review.  Yet, "the authority of a district court to review the magistrate judge's decision, even if neither party invokes such authority, is essential to ensuring that Article III values are protected."

These problems aren't new.  The Fifth Circuit recognized them, too, and in 2001 in U.S. v. Johnston ruled that a delegation of Section 2255 motions to a magistrate violated Article III.  (Prof. Ira Robbins (AU/WCL) helpfully explains all this in this 2002 article in the Federal Courts Law Review.  Both the article and Brown contain nice histories of magistrates in the Article III courts.)

But the Eleventh Circuit followed a different tack.  Instead of ruling that the constitutional problems with this kind of delegation resulted in a violation of Article III, it avoided the constitutional question by ruling (stretching and straining) that Section 2255 motions aren't "civil matters" for the purpose of Section 636(c) delegations to magistrates, and therefore as a matter of statutory construction the magistrate lacked authority to enter a final judgment on the Section 2255 motion.

For Brown, all this means that the magistrate's final judgment on his Section 2255 motion is invalid, and that he'll have to start over and have an Article III judge, not a magistrate, rule on his motion.

April 11, 2014 in Cases and Case Materials, Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 9, 2014

Obamacare Challenges in the D.C. Circuit

Jessica Mason Pieklo writes over at RH Reality Check about the pair of challenges to the Affordable Care Act set for oral argument next month (on May 8) in the D.C. Circuit.  One of those cases challenges the government's accommodation to the so-called contraception mandate for religious nonprofits--the same issue in the Little  Sisters case and, more recently, Notre Dame's case at the Seventh Circuit.  (Those rulings were on injunctions against the accommodation pending appeal.  Recall that the Supreme Court issued an order in the Little Sisters case, allowing the organization simply to write a letter to the HHS Secretary stating its religious objection to the contraception mandate, pending appeal on the merits to the Tenth Circuit.  In contrast, the Seventh Circuit denied Notre Dame's request for an injunction pending appeal.  The difference between the two cases: Notre Dame had already complied with the government's accommodation (and the court couldn't undo its compliance), whereas Little Sisters had not.) 

The other case, Sissel v. HHS, is less well known.  It challenges the universal coverage provision, or the so-called individual mandate.  Plaintiffs in the case argue that as a tax (recall the Court's ruling in the ACA case) the provision had to originate in the House of Representatives under the Origination Clause.  But it originated in the Senate.  Plaintiffs say it's therefore invalid.

Pieklo writes that President Obama's recent appointees will have an impact on the court, and on these cases.  That's because the panel that will hear arguments in these cases next month includes Judge Nina Pillard and Judge Robert Wilkins, the recent Obama appointees that were held up in the Senate but then confirmed after Senate Democrats used the nuclear option and disallowed a filibuster of federal court nominees (except Supreme Court nominees).  Judge Rogers is also on the panel.

April 9, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Free Exercise Clause, News, Religion | Permalink | Comments (0) | TrackBack (0)

Saturday, April 5, 2014

District Court Rejects Targeted Killing Claim

Judge Rosemary M. Collyer (D.D.C.) yesterday dismissed a civil damages claim against government officials for their roles in authorizing the targeted killing of Anwar Al-Aulaqi, his son, and Samir Khan.  Judge Collyer wrote in Al-Aulaqi v. Panetta that "special factors" counseled against the Bivens claim.

We've covered Al-Aulaqi's claims extensively (sometimes Al-Awlaki, sometimes Al-Awlaqi), both pre-killing and post-killing, brought by his father, Nasser.  Here's our post on Judge Bates's ruling dismissing Nasser's case to stop the killing.

The ruling adds to a body of lower-court cases limiting civil damage remedies against government officials for constitutional violations for actions related to the military, intelligence, and terrorism.  Indeed, these cases give government officials a free pass against civil damages claims for any action even loosely related to these areas, even with no showing by the government that the claims raise special factors counseling against a remedy (as this case illustrates--see below).

Nasser Al-Aulaqi brought this claim on behalf of his son Anwar and grandson Abdulrahman, along with Sarah Khan, who brought the claim on behalf of her son Samir.  Anwar was designated for targeting; Abdulrahman and Samir were not (they were bystanders in Anwar's targeted killing and another targeted killing).  All three were U.S. citizens. 

Nasser and Sarah sued government officials in their personal capacity under Bivens for Fourth and Fifth Amendment violations (among others).  The officials moved to dismiss, arguing that the complaint failed to state a claim, that special factors counseled against a Bivens remedy, and that they enjoyed qualified immunity.  

Judge Collyer ruled that special factors counseled against a Bivens remedy.  Citing Doe v. Rumsfeld, Lebron v. Rumsfeld, and Vance v. Rumsfeld, she wrote that military decisions get a pass, and that Bivens ought not be extended to them:

In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role.  This Court is not equipped to qustion, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Awar Al-Aulaqi in particular.  Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.

Here, Congress and the Executive have acted in concert, pursuant to their Constitutional authorities to provide for national defense and to regulate the military.  The need to hesitate before implying a Bivens claim is particularly clear.  Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa'ida and affiliated forces.  It is the Executive's position that AQAP is affiliated with al-Qa'ida. 

. . .

Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into "the heart of executive and military planning and deliberation," as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States.

. . .

Plaintiff's Complaint also raises questions regarding foreign policy because Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen who was killed in Yemen.  Plaintiff's suit against top U.S. officials for their role in ordering a missile strike against a dual citizen in a foreign country necessarily implicates foreign policy.

Remarkably, the court so concluded without any help of from the government--even after the court ordered the government to help by providing material in camera and ex parte to support the special-factors defense.

The United States filed a Statement of Interest in the case, stating that it might later assert a state secrets defense.  Judge Collyer ordered the government to lodge declarations, in camera and ex parte to explain why special factors counseled against a Bivens remedy in the case.  The government refused, arguing that the court could resolve the defendants' motion to dismiss on the complaint alone.  

Judge Collyer scolded the government for its refusal--and wrote that this made the court's job "unnecessarily difficult"--but still "cobble[d] together enough judicially-noticeable facts from various records" to conclude that special factors counseled against a Bivens remedy.  She wrote that without these facts, the court "would have denied the motion to dismiss."

April 5, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, April 3, 2014

Second Circuit Holds NYC Can Ban Religious Services in School Buildings

Does a city policy governing "extended use" of school facilities that excludes permits for the "purpose of holding religious worship services, or otherwise using a school as a house of worship" violate the First Amendment?

The Second Circuit in its opinion in Bronx Household of Faith v. Board of Education of the City of New York answered in the negative, a majority of the panel holding that the policy, Regulation I.Q., does not violate either the Free Exercise Clause or the Establishment Clause.

If this controversy sounds familiar, that would not be surprising.  We discussed it here, and as today's opinion notes, the litigation has been "long-running," citing Bronx Household of Faith v. Bd. of Educ. of City of New York, 650 F.3d 30 (2d Cir. 2011) (“Bronx Household IV”); Bronx Household of Faith v. Bd. of Educ. of City of New York, 492 F.3d 89 (2d Cir. 2007) (“Bronx Household III”); Bronx Household of Faith v. Bd. of Educ. of City of New York, 331 F.3d 342 (2d Cir. 2003); Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207 (2d Cir. 1997). 

800px-Winslow_Homer_-_Country_School
Country School by Winslow Homer circa 1873 via

Today's opinion  - - - Bronx Household V - - - reverses the district judge's grant of an injunction on Free Exercise claims which were arguably not before the courts previously.  The majority of the Second Circuit panel, in an opinion by Judge Pierre Leval joined by Guido Calabresi, carefully refuted the district judge's reasoning.  In short, the panel majority held that Locke v Davey, 540 U.S. 712 (2004) (finding that the exclusion of devotional theology degree programs from eligibility for state scholarships does not violate Free Exercise Clause) was more apposite than Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)(holding that an ordinance "targeting" the Santeria practice of animal sacrifice merited strict scrutiny and violated the Free Exercise Clause). 

The panel rejected the argument that the Regulation I.Q. targets religion generally or targets religions that have worship services.  The panel also rejected the attempt to distinguish the scholarship in Locke v, Davey, noting that under the "extended use" policy, the city subsidizes the use of school facilities since the organizations can use the facilities without cost.  The panel also found that the city's desire not to violate the Establishment Clause was a valid one.  As the panel summarized:

In view of (1) the absence of discriminatory animus on the part of the Board against religion, or against religions that conduct worship services; (2) the bona fides and the reasonableness of the Board’s concern that offering school facilities for the subsidized conduct of religious worship services would create a substantial risk of incurring a violation of the Establishment Clause claim; and (3) the fact that the Board’s policy (a) leaves all persons and religions free to practice religion without interference as they choose, (b) treats all users, whether religious or secular, in identical fashion, and (c) imposes no burden on any religion, leaving all free to conduct worship services wherever they choose other than the Board’s schools; as well as the other reasons recited in this opinion and in Bronx Household IV, we conclude that Reg. I.Q. does not violate Plaintiffs’ rights to free exercise of religion, whether or not it is subject to strict scrutiny.

As to the Establishment Clause, the court rejected Bronx Household's argument that for the city to determine what constituted "religious worship services" would infringe the Establishment Clause.  Bronx Household relied upon Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694 (2012) - - - an example of how doctrine has been changing during this protracted litigation - - - but the majority expressed a very different view:

Hosanna-Tabor, moreover, does not merely fail to support Bronx Household’s claim of Establishment Clause violation due to excessive entanglement by the Board; it actively contradicts the argument. This is because in Hosanna-Tabor the Supreme Court itself did precisely what the District Court found a governmental entity prohibited from doing.

In other words, when the United States Supreme Court "undertook to make its own determination whether the plaintiff was a minister subject to the ministerial exception," it engaged in the very same type of determination that Bronx Household argues would violate the Establishment Clause. 

If Senior Judge John Walker, dissenting, has his way, the Court might have a chance to discuss this Establishment Clause rationale again.  Walker contends that this "case presents substantial questions involving the contours of both religion clauses and the Free Speech Clause of the First Amendment, the resolution of which are ripe for Supreme Court review."  Most certainly, Bronx Household will be quoting that language in any petition seeking Supreme Court review.

April 3, 2014 in Courts and Judging, Establishment Clause, First Amendment, Free Exercise Clause, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Wednesday, April 2, 2014

Eleventh Circuit Invalidates Florida's Attempt to Remove Voters from Rolls

The Eleventh Circuit's opinion in Arcia v. Florida Secretary of State, Detzner concludes that Florida's program to remove "suspected non-citizens" from the voter rolls in 2012 violated Section 8(c)(2)(A) of the National Voter Registration Act (the 90 Day Provision) which requires states to “complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.” 42 U.S.C. § 1973gg-6(c)(2)(A).

While the case rests on an issue of statutory application, it raises two constitutional concerns.

800px-Ferdinand_de_Soto_Florida_map
Ferdinand DeSoto's Map of "Florida"

First, there are Article III concerns of standing and mootness, with the Secretary of State arguing the court should not exercise jurisdiction over the matter.  The standing argument as to the individual plaintiffs focused on the lack of "injury in fact," but the court found that they were directly injured when they were wrongly identified as noncitizens, even though they were not ultimately prevented from voting.  Additionally, they had standing to challenge Florida's second attempt to remove voters by showing "imminent injury."   The standing argument as to the organization plaintiffs  -- Florida Immigration Coalition, Inc., The National Congress for Puerto Rican Rights, and 1199SEIU United Healthcare Workers East - - - was resolved by the court's conclusion applying both a diversion-of-resources theory and an associational standing theory.

The court likewise rejected the mootness argument.  Although the 2012 election had certainly passed, the court found that the situation fit squarely within the “capable of repetition, yet evading review” exception to the mootness doctrine.  It reasoned that the challenged action fit both prongs of the test: the action in its duration was too short to be fully litigated prior to cessation or expiration; and there is a reasonable expectation that the same complaining party will be subject to the same action again.

The other constitutional aspect of the case involved the interpretation of the federal statute's 90 day provision itself:

We reject Secretary Detzner’s attempts to have us decide today whether both the General Removal Provision and the 90 Day Provision allow for removals of non-citizens. Certainly an interpretation of the General Removal Provision that prevents Florida from removing non-citizens would raise constitutional concerns regarding Congress’s power to determine the qualifications of eligible voters in federal elections. Cf. Arizona v. Inter Tribal Council of Arizona, Inc., ___ U.S. ___, 133 S. Ct. 2247, 2257 (2013) (“Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.”). We are not convinced, however, that the Secretary’s perceived need for an equitable exception in the General Removal Provision also requires us to find the same exception in the 90 Day Provision. None of the parties before us have argued that we would reach an unconstitutional result in this case if we found that the 90 Day Provision prohibits systematic removals of non-citizens. Constitutional concerns would only arise in a later case which squarely presents the question of whether the General Removal Provision bars removal of non- citizens altogether. And before we ever get that case, Congress could change the language of the General Removal Provision to assuage any constitutional concerns. With this in mind, we will confine our ruling to apply to the plain meaning of the 90 Day Provision and decline Secretary Detzner’s invitation to go further.

The panel opinion, written by Judge Beverly Martin, was not unanimous.  While Judge Adalberto Martin joined the opinion, Judge Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit, sitting by designation, wrote a very brief dissent, simply citing the two federal district court cases on the issue.

April 2, 2014 in Courts and Judging, Fifteenth Amendment, Fundamental Rights, Interpretation, Mootness, Opinion Analysis, Race, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 1, 2014

Disparate Views of the Secret Service: The Court and the Realities?

In the oral arguments last week in Wood v. Moss and the Court's 2012 decision in Reichle v. Howards, the Secret Service was center stage.  Recall that both cases involve qualified immunity for Secret Service agents against constitutional claims and raise the specter that the individual agents acted inappropriately.  And in both cases, there is some valorization of the agents and their difficult task of protecting the President (in Wood) and the Vice-President (in Reichle). 

800px-Robert_Warwick_in_Secret_Service

Arguing for the United States Government in Wood v. Moss, the Deputy Solicitor General expressed the fear that not upholding qualified immunity would lead to a "demoralization of the service leaning in the direction of being overly careful and therefore risking the life of the President" and that allowing discovery is "exactly the nightmare scenario that the Secret Service fears" including "
discovery into what the agents were thinking" and "what the Secret Service's policies were." 

And in Reichle, Justice Ginsburg concurring in the unanimous opinion, discusses the difficult facts in the case as well as deference to the agents' role:

Officers assigned to protect public officials must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy. In performing that protective function, they rightly take into account words spoken to, or in the proximity of, the person whose safety is their charge. Whatever the views of Secret Service Agents Reichle and Doyle on the administration’s policies in Iraq, they were duty bound to take the content of Howards’ statements into account in determining whether he posed an immediate threat to the Vice President’s physical security. Retaliatory animus cannot be inferred from the assessment they made in that regard.

But one wonders how positive views of the Secret Service suffer given recurrent scandals involving the Secret Service.  As the United States Supreme Court was considering Reichle, there was the scandal in Colombia involving more than a dozen agents, but a later Homeland Security report (official synposis here) found that there was not "widespread sexual misconduct."  Most recently, at least one agent assigned to protect the President was reportedly "found drunk and passed out in a hotel hallway."  This latest scandal was reportedly not good news for the Secret Service's first woman director who has "tried to implement reforms."  One former Secret Service agent writes in a WaPo op-ed that the problem is not bad agents but bad leadership." 

But whether attributed to bad leadership or what might be called "bad apples," should these revelations about the bad judgments of secret service agents influence the Court's own judgments?  Doctrines such as qualified immunity and strict pleading requirements that prevent discovery serve to protect Secret Service agents from their "nightmares" (as the Deputy Solicitor General phrased it), but might they also insulate the Secret Service from responsibility for the nightmares they cause others. 

[image via]

April 1, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Fourth Amendment, News, State Secrets | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 25, 2014

Justice Kennedy and the Hobby Lobby Contraceptive Mandate Oral Arguments: Is it Simply Administrative Law?

The arguments in the consolidated cases of  Hobby Lobby and Conestoga Wood Specialities v. Sebelius displayed Justices sharply divided on the issues as we discussed.  Whether Justice Kennedy will be the deciding vote in the cases is sure to be the subject of much speculation.  What, if anything, might be derived from his expressions at oral argument?  

He began, relatively early in the oral argument, by making space for Paul Clement to elaborate on his "framework" and by posing a question about RFRA:

JUSTICE KENNEDY: You were beginning by giving us a framework for your argument. Do I think of this as a statutory case? Of course, the First Amendment is on the stage at some point here, but I take it you can prevail just on the question of statutory interpretation, and if that is so, are there any statutory rules that work in your favor, that is to say, avoiding a constitutional question or how do we think about this case, primarily as a statutory case?

Justice Kagan thereafter pointed out that RFRA was a "special kind of statute" that "specifically refers back to a "body of constitutional law."

Justice Kennedy also asked about the relative substantial burden of paying any fines: "Let's assume that the cost of providing insurance is roughly equivalent to the $2,000 penalty. How ­­ how is the employer hurt? He can just raise the wages."

Clement eventually answered that “If they take away the health care insurance, they are going to have to increase the wages to make up for that. And they're going to have to pay the $2,000 penalty on top of it, plus they're going to have to violate their ­­ their own interest which is, we actually ­­ we believe it's important to provide our employees with qualified health care.

JUSTICE KENNEDY: Okay, the last is important. But just assume hypothetically that it's a wash, that the employer would be in about the same position if he paid the penalty and the employer ­­ pardon me, an employee went out and got the insurance and that the employee's wages were raised slightly and then it's ­­ and that it's a wash so far as the employer are concerned, other than the employer's religious objection, but just on the financial standpoint. Can we assume that as a hypothetical. Then what would your case be?

MR. CLEMENT: I think my case would be that in that case the government might be able to sort of support itself on the compelling interest. I think there would still be a substantial burden on their exercise. But again, this all turns on issues that the government hasn't put in issue.

Toward the end of Clement's time, Kennedy posed a different type of query:

JUSTICE KENNEDY: Just before your time starts to go too fast, how would you suggest that we think about the position and the rights of the ­­ of the employees? And you can have hypotheticals about the employer makes them ­­ wants to make them wear burkas and so forth. That's not in this case. 

But in ­­ in a way, the employees are in a position where the government, through its healthcare plans, is ­­ is, under your view, is ­­ is allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious ­­ religious beliefs of the employer. Does the religious beliefs just trump? Is that the way it works?

In Kennedy's extensive colloquy with Solicitor General Verrilli, the subject veered from compelling governmental interest back to the status of RFRA:

JUSTICE KENNEDY:  Is it your position that part of the compelling interest here is that you have to protect the integrity ­­ the operational integrity of the whole Act?

GENERAL VERRILLI: It is part of our argument, absolutely. And ­­ but it ­­ but there is in addition to that, much more ­­

JUSTICE KENNEDY: Does that mean the constitutionality of the whole Act has to be examined before we accept your view?

GENERAL VERRILLI: Well, I think it has been examined, Your Honor, is my recollection.

(Laughter.)

GENERAL VERRILLI: But ­­ but with respect to ­­ but with respect to the ­­ there is a particularized interest here in that what we are talking about is a question of whether 14,000 employees and their families get access to this contraceptive coverage.

JUSTICE KENNEDY: You ­­ you have exempted a whole class of corporations and you've done so under your view not because of RFRA.

GENERAL VERRILLI: So let me ­­ let me go to that ­­

JUSTICE KENNEDY: Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court.

But when we have a First Amendment issue of ­­ of this consequence, shouldn't we indicate that it's for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

 Kennedy later continued on the issue of compelling governmental interest:

JUSTICE KENNEDY: I still don't understand how HHS exercised its judgment to grant the exemption to nonreligious corporations if you say it was not compelled by RFRA.

GENERAL VERRILLI: I don't think ­­

JUSTICE KENNEDY: Then it must have been because the health care coverage was not that important.

GENERAL VERRILLI: It didn't grant an exemption to any nonreligious organizations, Justice Kennedy. It granted an exemption to churches, and that was it. . . .

And later, Justice Kennedy, whose opinions on abortion are certainly complex, asked Verrilli what seemed a version of a particular "slippery slope" that had not been extensively considered:

JUSTICE KENNEDY: Under your view, a profit corporation could be forced ­­ in principle, there are some statutes on the books now which would prevent it, but ­­ could be forced in principle to pay for abortions.

GENERAL VERRILLI: No. I think, as you said, the law now ­­ the law now is to the contrary.

JUSTICE KENNEDY: But your reasoning would permit that.

GENERAL VERRILLI: Well, I think that ­­ you know, I don't think that that's ­­ I think it would depend on the law and it would depend on the entity.

 Finally, during Verrilli's argument, Justice Kennedy expressed interest in a hypothetical posetd by Justice Alito about a law requiring humane treatment of animals and therefore prohibiting kosher and halal slaughter.

Justice Kennedy asked no questions during Clement's rebuttal, but Clement gave the last word to Kennedy:

 . . . . If I could have just one second more to say that the agency point that Justice Kennedy has pointed to is tremendously important, because Congress spoke, it spoke in RFRA. Here the agency has decided that it's going to accommodate a subset of the persons protected by RFRA. In a choice between what Congress has provided and what the agency has done, the answer is clear.

Certainly Clement's articulation is simplistic, but it could satisfy Kennedy's initial search for some statutory construction principles that might make the answer to the divisive issues also seem simple.

[image: Justice Kennedy by Donkey Hotey via]

March 25, 2014 in Abortion, Courts and Judging, First Amendment, Oral Argument Analysis, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Supreme Court Hears Oral Arguments in Hobby Lobby and Conestoga Wood Specialties on RFRA and the "Contraceptive Mandate"

Should corporations (or their owner/shareholders) be able to interpose a religious objection to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage? 

Simplified, that's the question at the heart of the oral arguments today in the consolidated cases of Hobby Lobby v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius in which the Court granted certiorari in November.  The legal issues are complex (our primer is here and another here), but given the basic conflict, it's no wonder the case has attracted so much attention. Another good overview is Lyle Denniston's preview of the arguments for SCOTUSblog.

Recall that the Tenth Circuit's divided en banc opinion in Hobby Lobby essentially split 5-3 over the issue of whether a for-profit secular corporation has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause.  The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees.

Recall also that the Third Circuit's divided panel opinion in Conestoga Woods rejected the contention that the corporation could raise a claim under RFRA, either as a corporation possessing free exercise of religion rights or under a "pass through" theory allowing the beliefs of the owners to pass to the corporate form.

Moreover, Hobby Lobby and Conestoga Woods are not the only two opinions on these issues.  A digest of some previous circuit court cases and some discussion of the controversy is here; the divided Seventh Circuit opinion is discussed here; and the ACLU has a helpful running tab on all the cases here. So, the Court's ultimate conclusion will impact a number of cases.

Today's 90 minute oral argument {transcript} in the consolidated cases began with Paul Clement representing the "private parties," Hobby Lobby and Conestoga Wood and then Solicitor General Donald Verrilli  representing the federal government, including Kathleen Sebelius as Secretary of Health and Human Services.  Not surprisingly, the questions to Clement largely came from Justices Kagan, Sotomayor, and Ginsburg, and the questions to Verrilli came from Justices Alito and Scalia, as well as Chief Justice Roberts.   Also not surprisingly, the arguments were peppered with slippery slopes, other analogies, questions of Congressional intent in passing RFRA, RFRA's relationship with First Amendment doctrine, and the relevance of the corporate form. 

The question as to the cost of not complying with the mandate (part of the substantial burden on the corporations under RFRA) was the subject of this rather interesting exchange during Paul Clement's argument:

JUSTICE KAGAN:  . . . .

And so the question is, why is there a substantial burden at all?

MR. CLEMENT: Well, just to be clear, we were talking about the same thing. So the option, the choice, is between paying a $475 million a year penalty and a $26 million a year penalty.  That's what Hobby Lobby faces.  So $2,000 per person - - -  ­­

JUSTICE KAGAN: No, between paying $2,000 per employee per year if Hobby Lobby does not provide ­­- - -

MR. CLEMENT: That's $26 million.

JUSTICE KAGAN: You know, Hobby Lobby is paying something right now for the - - -­­ for the coverage. It's less than what Hobby Lobby is paying for the coverage. There are employers all over the United States that are doing this voluntarily because they think that it's less.

CHIEF JUSTICE ROBERTS: I thought - - -­­ I thought that part of the religious commitment of the owners was to provide health care for its employees.

MR. CLEMENT: That is true, Mr. Chief Justice. It is also true that this ­­- - -

JUSTICE SOTOMAYOR: Well, if they want to do that, they can just pay a greater salary and let the employees go in on the exchange.

MR. CLEMENT: Exactly, which is, by the way, why comparing the $2,000 penalty to the cost of the health care is a false - - - ­­ it's a false comparison.

JUSTICE SOTOMAYOR: It's not called a penalty. It's called a tax. And it's calibrated ­­ - - - and it's calibrated ­­

CHIEF JUSTICE ROBERTS: She's right about that.

 (Laughter.)

 The laughter arises from Chief Justice Roberts' decision in NFIB v. Sebelius that the ACA was constitutional under Congress' power to tax, but it is worth noting that Roberts jumped in to assert the corporation's exercise of religion as including the provision of health insurance.  Justices Ginsburg and Kagan later come back to this point:

JUSTICE GINSBURG: There was a point made earlier, and I think you didn't mean to say this, that provision of health care is not part of their religious belief. Covering their employees for health care, that is not a religious tenet, right?

MR. CLEMENT: No, it actually is.  Again, it hasn't been the principal theory been litigated. But see, if you complaints and you go back to our briefs, you know, it's part of the religious beliefs that both the Hahns and the Greens have. They think it's actually important ­­- - -

JUSTICE KAGAN: But, Mr. Clement, you're not saying, are you, that their religious beliefs mandate them to provide health care? I thought that you were never making that claim.

MR. CLEMENT: I didn't have to make that claim in the course of this litigation. What I'm pointing out, though, is for purposes of the substantial burden analysis, it is perfectly appropriate to take into account that the 2,000 ­­ the $26 million in fines they would pay would not be the only thing that they would lose out if they are on that horn of the dilemma. They would also lose out all the additional wages they would have to pay, and they would be in this position of not offering health care, which is something they believe is important for their religion as well.

JUSTICE KAGAN: You know, I'm sure they seem like very good employers. And I'm sure they want to be good employers. But again, that's a different thing than saying that their religious beliefs mandate them to provide health insurance . . . .

If the "substantial burden" under RFRA is the most difficult element that the corporations to meet, then the strict scrutiny test applicable to any substantial burden is surely the government's most difficult task.  The questioning noted that the "least restrictive means" test in RFRA was clearly more difficult to meet than even the pre-Smith cases that RFRA explicitly sought to restore - - - and there did not seem to be even a glimmer that RFRA should be held unconstitutional (which would, of course, require a departure from O Centro Espirita Beneficiente Uniao Do Vegetal v. Gonzales). 

 Justice Breyer, asking his first question of the argument, requested that Verrilli provide a "precise answer" to the "least restrictive" argument that the government should simply pay for the contraceptive coverage.  Verrilli's argued that this suggestion by the corporations was not properly before the Court, but even if it was, that even the accommodation would be subject to a RFRA challenge.   Justice Alito suggested that Clement be asked about whether this would hapen, and indeed Clement was asked (by Justice Sotomayor).  Clement's reply:

We haven't been offered that accommodation, so we haven't had to decide what kind of objection, if any, we would make to that. But it's important to recognize that as I understand that litigation, the objection is not to the fact that the insurance or the provider pays for the contraception coverage. The whole debate is about how much complicity there has to be from the employer in order to trigger that coverage. And whatever the answer is for Little Sisters of the Poor, presumably you can extend the same thing to my clients and there wouldn't be a problem with that.

 Whether Justice Kennedy will be the deciding vote in this case is certain to be subject to much speculation and his questions will be closely read; our extended discussion is here.  But without question, the Justices seem sharply divided.

 

March 25, 2014 in Courts and Judging, Current Affairs, First Amendment, Gender, Oral Argument Analysis, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2014

Supreme Court Declines Review of Arbitration Open Access Case

Today the United States Supreme Court denied review of Strine v. Delaware Coalition, a case in which a Third Circuit panel held that arbitration proceedings cannot be confidential under the First Amendment. 

As we previously discussed, the judges in the Third Circuit were quite divided; there were three opinions in the case.  But the majority conclusion requiring these high stakes commercial arbitrations allowed by Delaware law and performed by Delaware judges to not remain secret seems the correct one.  Especially if the First Amendment access to "trials" should continue to have substantive meaning.

450px-Le_secret
"le secret" via

 

It's always dangerous to speculate why the Supreme Court declines to enter the fray, but  it's worth noting that Delaware's secrecy scheme protecting commercial arbitration is rather unique.

March 24, 2014 in Courts and Judging, First Amendment, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Sunday, March 23, 2014

Force-Feeding As Torture at Guantanamo

Jon B. Eisenberg, counsel, along with Reprieve US, for Shaker Aamer and Emad Hassan, Guantanamo detainees, writes over at Jurist.org that force-feeding detainees at Guantanamo is akin to the medieval form of torture called "pumping," or the water cure.  Eisenberg makes the case that force-feeding is not "reasonably related to legitimate penological interests," the standard under Turner v. Safley, because the government force-feeds prematurely, long before detainees are at risk of death or great bodily harm.  He writes that there are "obvious, easy alternatives," and that force-feeding is an "exaggerated response."

Recall that the D.C. Circuit ruled earlier this year that federal courts could hear Aamer's habeas claim--a claim not for release, but rather against his conditions of confinement.  This was a huge victory for Guantanamo detainees: it was the first time the court said that they could bring a habeas claim challenging their conditions of confinement. 

But the court also ruled that Aamer was not likely to succeed on the merits of his claim.  Eisenberg explains why that was wrong.

The government hasn't said whether it'll appeal the Aamer ruling.  In the meantime, Eisenberg and Reprieve US are going forward with another claim against force-feeding, Hassan's.

March 23, 2014 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)

Friday, March 21, 2014

Michigan District Judge Declares State's Prohibition on Same-Sex Marriage Unconstitutional

Following the trend which we most recently discussed here and here, Senior United States District Judge for the Eastern District of Michigan, Bernard Friedman, declared the state's same-sex marriage ban unconstitutional in his  opinion today in DeBoer v. Snyder.

At issue was Michigan's state constitutional amendment, Mich. Const. Art. I, § 25, which the court referred to as the Michigan Marriage Amendment, MMA, passed by voter referendum in November 2004.  The judge held a trial limiting the issue to whether the MMA "passed rational basis review" under the Fourteenth Amendment and held that it did not because it violated the Equal Protection Clause.  The court stated it therefore did not reach the Due Process Clause question.

The state proffered the by now familiar government interests to satisfy the required "legitimate" government interest:

  1.  providing an optimal environment for child rearing;
  2. proceeding with caution before altering the traditional definition of marriage; and
  3. upholding tradition and morality.

489px-1836_MichiganIn evaluating each of these, the judge reached the by now familiar conclusions.  Judge Friedman discussed the evidence at trial, holding that there was "no logical connection between banning same- sex marriage and providing children with an 'optimal environment' or achieving 'optimal outcomes;'" that the "wait and see" approach did not satisfy the legitimate government interest standard; and finally that upholding tradition and morality likewise did not satisfy the legitimate government interest standard, citing several of the recent cases that have held likewise. 

Additionally, Judge Friedman rejected the state's "federalism" argument that sought to distinguish United States v. Windsor, relying heavily on Loving v. Virginia.  As the judge phrased it:

Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. Having failed to establish such an interest in the context of same-sex marriage, the MMA cannot stand.

The judge also rejected the argument that the MMA's status as a constitutional amendment prompted by voter referendum was relevant, quoting the famous language from the 1943 flag-salute First Amendment case of West Virginia Bd. of Ed. v. Barnette: the "very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy" and "to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."

Judge Friedman's decision is closely and carefully reasoned, although it closes with a rhetorical paragraph that labels the opinion "a step in the right direction."

The Judge enjoined the enforcement of the same-sex marriage ban and unlike some other judges, he did not order a stay.

[image: Map of Michigan circa 1836 via]

 

March 21, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Canada Supreme Court: No to Nadon

In its opinion today in Reference re Supreme Court Act, ss. 5 and 6, the Supreme Court of Canada, with only one Justice dissenting, concluded that Marc Nadon would not be joining them on the nation's highest bench.

As we previously discussed, the nomination of Marc Nadon (objected to by some for its failure to advance gender parity), posed a constitutional question regarding whether a judge on the Federal Court of Appeal was eligible for the Supreme Court.   Cribbing from another of our discussions that quoted Canadian scholars Michael Plaxton and Carissima Mathen, here's the problem in a nutshell:

Section 5 of the Supreme Court Act states: “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” Section 6 provides: “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province.” Mr Justice Nadon was, at the time of his nomination, neither a judge of a Quebec superior court nor a current member of the practicing bar. It is therefore not clear that he is “among the advocates” of Quebec within the meaning of section 6.

800px-Supreme_Court_of_Canada,_Ottawa
Supreme Court of Canada

 

Today the Court decided that

A judge of the Federal Court or Federal Court of Appeal is ineligible for appointment to the Supreme Court of Canada under s. 6 of the Act.  Section 5 of the Act sets out the general eligibility requirements for appointment to the Supreme Court by creating four groups of people who are eligible for appointment:  (1) current judges of a superior court of a province, including courts of appeal; (2) former judges of such a court; (3) current barristers or advocates of at least 10 years standing at the bar of a province; and (4) former barristers or advocates of at least 10 years standing.  However, s. 6 narrows the pool of eligible candidates from the four groups of people who are eligible under s. 5 to two groups who are eligible under s. 6.  In addition to meeting the general requirements of s. 5, persons appointed to the three Quebec seats under s. 6 must be current members of the Barreau du Québec, the Quebec Court of Appeal or the Superior Court of Quebec.
The plain meaning of s. 6 has remained consistent since the original version of that provision was enacted in 1875, and it has always excluded former advocates.  By specifying that three judges shall be appointed “from among” the judges and advocates (i.e. members) of the identified institutions, s. 6 impliedly excludes former members of those institutions and imposes a requirement of current membership.  Reading ss. 5 and 6 together, the requirement of at least 10 years standing at the bar applies to appointments from Quebec.
This textual analysis is consistent with the underlying purpose of s. 6 and reflects the historical compromise that led to the creation of the Supreme Court as a general court of appeal for Canada and as a federal and bijural institution.  Section 6 seeks (i) to ensure civil law expertise and the representation of Quebec’s legal traditions and social values on the Court, and (ii) to enhance the confidence of Quebec in the Court.  This interpretation is also consistent with the broader scheme of the Act for the appointment of ad hoc judges, which excludes judges of the federal courts as ad hoc judges for Quebec cases.

The Court's opinion seems well-reasoned, careful, and right.  And while its effect is certainly cataclysmic to Nadon (and perhaps to his conservative supporters), it may be less so for Canadian politics ultimately, and even less so for Canadian constitutional law doctrinally.  Nevertheless,  Nadon's appointment to the Supreme Court would have changed Canadian Constitutional law.  And certainly, the nomination of a Justice to the nation's highest court being deemed ineligible to serve on that Court by the Justices of the Court themselves is certainly dramatic.

 

March 21, 2014 in Comparative Constitutionalism, Courts and Judging, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Saturday, March 15, 2014

Tennessee Federal Judge Issues a Narrow Injunction Regarding Prohibition of Same-Sex Marriage Recognition

In her opinion in Tanco v. Haslom, federal district judge in the Middle District of Tennessee, Aleta A. Trauger, decided that what she called the state's "Anti-Recognition Laws" are most likely unconstitutional as violative of equal protection, even under rational basis review.  She therefore enjoined the state from refusing to recognize the otherwise valid out-of-state marriages of the six plaintiffs in the case. 

Judge Trauger's opinion is relatively brief.  She highlights the United States Supreme Court's decision in United States v. Windsor , and while she does not mention Justice Scalia's Windsor dissent, she does echo the cases that have, and notes the "rising tide" of cases that have relied on Windsor to find their state same-sex marriage prohibitions unconstitutional.  She states that she

finds Judge Heyburn’s equal protection analysis in Bourke [v. Beshear], which involved an analogous Kentucky anti-recognition law, to be especially persuasive with respect to the plaintiffs’ likelihood of success on the merits of their Equal Protection Clause.

1827_Finley_Map_of_Tennessee_-_Geographicus_-_Tennessee-finley-1827

 

While emphasizing the narrowness of her opinion and that the United States Supreme Court will ultimately rule on the matter, she concludes with a prediction:

At this point, all signs indicate that, in the eyes of the United States Constitution, the plaintiffs’ marriages will be placed on an equal footing with those of heterosexual couples and that proscriptions against same-sex marriage will soon become a footnote in the annals of American history.

[image: 1827 map of Tennessee via]

March 15, 2014 in Courts and Judging, Family, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)