Thursday, February 13, 2014
United States District Judge John G. Heyburn's opinion in Bourke v. Beshear finds that Kentucky's statutory and state constitutional provisions defining marriage as limited to one man and one woman violate the Fourteenth Amendment's Equal Protection Clause when applied to same-sex spouses married in another state.
The judge's 23 page opinion is crafted for both a nonlegal and legal audience.
For popular consumption, Judge Heyburn's opinion has passages written in direct prose answering questions he himself has posed and unburdened with extensive citations. For example, he writes:
For many others, this decision could raise basic questions about our Constitution. For instance, are courts creating new rights? Are judges changing the meaning of the Fourteenth Amendment or our Constitution? Why is all this happening so suddenly?
The answer is that the right to equal protection of the laws is not new. History has already shown us that, while the Constitution itself does not change, our understanding of the meaning of its protections and structure evolves. If this were not so, many practices that we now abhor would still exist.
He discusses religiosity in similar terms, beginning by noting that many Kentuckians believe "what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society’s benefit" and later opining that
The beauty of our Constitution is that it accommodates our individual faith’s definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.
For its legal audience, Judge Heyburn's opinion contains a rigorous analysis of equal protection doctrine, of the Supreme Court's decision last June in United States v. Windsor, and of the courts applying Windsor.
Engaging with the Court's opinion in Windsor, authored by Justice Kennedy, Judge Heyburn expresses some frustration with the lack of clear equal protection doctrine, observing that the Court "never clearly explained the applicable standard of review." Nevertheless, Judge Heyburn used two "principles" of Windsor: that the actual purpose of the law must be considered in light of animus and that the laws must not demean one group by depriving them of the rights provided for others. Ultimately, Judge Heyburn applies rational basis review and finds that the government interests proferred by Kentucky - - - as well as those advanced in an amicus brief submitted by the Family Trust Foundation of Kentucky - - - are not legitimate interests.
Judge Heyburn also discusses the three federal district judges who have reached similar conclusions in "well-reasoned opinions," citing the opinions in Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah (now stayed).
To be clear, the effect of the opinion is not to mandate clerks in Kentucky begin offering marriage licenses to same-sex couples. But it is to require Kentucky to recognize same-sex marriages valid in another state as valid in Kentucky on the same terms as other marriages.
[image: 1921 map of Kentucky via]
Sunday, February 9, 2014
Sexual Orientation Change Efforts Ban: Petition for Certiorari After Ninth Circuit Declines En Banc Review
Recall that the Ninth Circuit upheld the California statute in Pickup v. Brown in August 2013. The panel concluded that on the continuum between speech and conduct, California's SB 1172 landed on conduct, "where the state's power is great, even though such regulation may have an incidental effect on speech." Applying a rational basis standard, the court rejected the claim that California legislature acted irrationally.
The Ninth Circuit has issued an opinion and rejected en banc rehearing over a dissent by Judge O’Scannlain, joined by Judges Bea and Ikuta. The dissenting opinion began with a forceful "issue statement" worthy of an oral argument:
May the legislature avoid First Amendment judicial scrutiny by defining disfavored talk as “conduct”? That is what these cases are really about.
Interestingly, the original panel - - - Judge Susan Graber, joined by Chief Judge Alex Kozinski and Judge Morgan Christen - - - included an amended panel opinion accompanying the denial of the en banc rehearing. This amended panel opinion adds two passages that discuss United States Supreme Court precedent on the "conduct" issue with which the dissenters disagreed.
First, Judge Graber adds a brief discussion [in italics below] before the more detailed discussion of Ninth Circuit precedent:
The first step in our analysis is to determine whether SB 1172 is a regulation of conduct or speech. “[W]ords can in some circumstances violate laws directed not against speech but against conduct . . . .” R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992). “Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.” Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR II”), 547 U.S. 47, 62 (2006). The Supreme Court has made clear that First Amendment protection does not apply to conduct that is not “inherently expressive.” Id. at 66. In identifying whether SB 1172 regulates conduct or speech, two of our cases guide our decision: National Association for the Advancement of Psychoanalysis v. California Board of Psychology (“NAAP”), 228 F.3d 1043 (9th Cir. 2000), and Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).
Second, and more substantially, the amended opinion includes a discussion of Holder v. Humanitarian Law Project upon which the dissenting opinion relied, as well as expanding the reliance on Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR II”):
Plaintiffs contend that Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), supports their position. It does not.
As we have explained, SB 1172 regulates only (1) therapeutic treatment, not expressive speech, by (2) licensed mental health professionals acting within the confines of the counselor-client relationship. The statute does not restrain Plaintiffs from imparting information or disseminating opinions; the regulated activities are therapeutic, not symbolic. And an act that “symbolizes nothing,” even if employing language, is not “an act of communication” that transforms conduct into First Amendment speech. Nev. Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2350 (2011). Indeed, it is well recognized that a state enjoys considerable latitude to regulate the conduct of its licensed health care professionals in administering treatment. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 157 (2007) (“Under our precedents it is clear the State has a significant role to play in regulating the medical profession.”).
In sharp contrast, Humanitarian Law Project pertains to a different issue entirely: the regulation of (1) political speech (2) by ordinary citizens. The plaintiffs there sought to communicate information about international law and advocacy to a designated terrorist organization. The federal statute at issue barred them from doing so, because it considered the plaintiffs’ expression to be material support to terrorists. As the Supreme Court held, the material support statute triggered rigorous First Amendment review because, even if that statute “generally functions as a regulation of conduct . . . as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message.” Humanitarian Law Project, 130 S. Ct. at 2724 (second emphasis added).6 Again, SB 1172 does not prohibit Plaintiffs from “communicating a message.” Id. It is a state regulation governing the conduct of state-licensed professionals, and it does not pertain to communication in the public sphere. Plaintiffs may express their views to anyone, including minor patients and their parents, about any subject, including SOCE, insofar as SB 1172 is concerned. The only thing that a licensed professional cannot do is avoid professional discipline for practicing SOCE on a minor patient.
This case is more akin to FAIR II. There, the Supreme Court emphasized that it “extended First Amendment protection only to conduct that is inherently expressive.” 547 U.S. at 66 (emphasis added). The Court upheld the Solomon Amendment, which conditioned federal funding for institutions of higher education on their offering military recruiters the same access to campus and students that they provided to nonmilitary recruiters. The Court held that the statute did not implicate First Amendment scrutiny, even as applied to law schools seeking to express disagreement with military policy by limiting military recruiters’ access, reasoning that the law schools’ “actions were expressive only because the law schools accompanied their conduct with speech explaining it.” Id. at 51, 66. Like the conduct at issue in FAIR II, the administration of psychotherapy is not “inherently expressive.” Nor does SB 1172 prohibit any speech, either in favor of or in opposition to SOCE, that might accompany mental health treatment. Because SB 1172 regulates a professional practice that is not inherently expressive, it does not implicate the First Amendment.
It's fair to say that these passages - - - incorporating United States Supreme Court cases - - - are intended to communicate to the Supreme Court Justices why the Ninth Circuit panel opinion does not merit review.
A split in the circuits does not seem likely. A New Jersey federal judge upheld the similar New Jersey statute prohibiting sexual conversion therapy under similar rationale.
Thursday, January 30, 2014
NYC's practice of stop and frisk has been controversial in the streets and in the courts. Recall
that in August 2013, Judge Shira Scheindlin found the New York City Police Department's stop and frisk policies unconstitutional as violative of equal protection. Judge Scheindlin's exhaustive opinion in Floyd v. City of New York was accompanied by an extensive order, setting out remedies, including monitoring. By a very brief opinion, Judge Scheindlin's decision was stayed by the Second Circuit - - - and Judge Scheindlin removed. The Second Circuit later reaffirmed its decision, but in more moderate and explanatory tones.
But before the Second Circuit could issue an opinion on the merits, NYC elected a new mayor, who today announced an agreement in Floyd v. City of New York. Mayor Bill deBlasio (pictured below) announced that NYC has asked for a remand of the appeal to the district court, and has agreed to a court-appointed monitor who will serve for three years, overseeing the NYPD’s reform of its stop-and-frisk policy and reporting to the court.
Monday, January 27, 2014
Sunday, January 26, 2014
Recall that in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper, Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional.
Cohn notes that the judges' differing opinions rest from their differing interpretations of Smith v. Maryland. But Cohn goes further, providing a swift description the Fourth Amendment terrain, especially the Court's 2012 decision in United States v. Jones in which a 5-4 majority found that attachment of a GPS device to track the movements of a vehicle for nearly a month violated a reasonable expectation of privacy.
Cohn concludes that Judge Leon's opinion is better reasoned than Judge Pauley's, noting that while "Leon's detailed analysis demonstrated how Jones leads to the result that the NSA program probably violates the Fourth Amendment, Pauley failed to meaningfully distinguish Jones from the NSA case, merely noting that the Jones Court did not overrule Smith."
But she, like many others, thinks the issue is ultimately headed to the United States Supreme Court.
Unless, of course, President Obama acts quickly to revise the program.
Saturday, January 25, 2014
This 132nd anniversary of the birth of Virginia Woolf (born Virginia Stephen on January 25, 1882), is suitable for reading Jeremy Bradley's essay, Virginia Woolf and The Judicial Imagination, available on ssrn.
literature brings with it evaluative commitments on the part of the reader, commitments that mirror a judge’s recognition of the significance of vulnerable events, a focus on the epistemological value of emotion, and on the competing choices human agents often face. At the same time, the practical aspect of this evaluative process is the very quality that makes analysing literature ‘so unlike dogmatic abstract legal processes. Thus to supplement judicial decision-making with imagination is to redefine what is meant by effective decision-making.
Whether or not judges can integrate empathetic imagination - - - or even whether Virginia Woolf could actualize empathy in her own life when it came to her "servants" as I've discussed in "A Servant of One's Own," available on ssrn - - - the project is an important one if we seek to achieve "justice" rather than merely legal outcomes.
Tuesday, January 21, 2014
Ninth Circuit Extends Batson's Equal Protection Doctrine Regarding Juror Exclusion to Sexual Orientation and Applies "Heightened" Scrutiny
In its opinion today in SmithKline Beecham Corporation (GSK) v. Abbott Laboratories, a unanimous panel of the Ninth Circuit extended the equal protection rule and analysis of Batson v. Kentucky (1986) regarding juror exclusions to those based on sexual orientation.
The underlying dispute between the pharmaceutical companies involved HIV medications and during jury selection the attorneys for Abbott Laboratories "used its first peremptory strike against the only self-identified gay member of the venire." The attorneys for GSK sought to initiate a Batson inquiry on the basis of sexual orientation. The Batson analysis first requires a "prima facie" case of intentional discrimination, after which the striking party must offer a neutral reason for the strike, and then, third and last, the court makes a determination whether there has been an equal protection violation.
The district judge allowed the preemptory strike although said she would "reconsider her ruling if Abbott struck other gay men." While the judge advised Abbott's attorney that “it might be the better part of valor” to reveal the basis for his strike, counsel "replied that he would rely on the grounds given by the judge and further explained, 'I don’t think any of the challenge applies. I have no idea whether he is gay or not.'" Apparently he later "added that he could not have engaged in intentional discrimination because this was only his first strike." After a four week trial, the jury returned a "mixed verdict."
In the opinion authored by Judge Reinhardt, the Ninth Circuit held that there was a "prima facie" sufficient to have triggered the Batson inquiry, and using the record before it, then engaged in the second prong of the Batson analysis, finding that Abbott's counsel did not provide a sufficient explanation.
As to the third prong, the Ninth Circuit panel noted that generally attorneys may "exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to ‘rational basis’ review." It then stated: "Thus, if sexual orientation is subject to rational basis review, Abbott’s strike does not require reversal."
Judge Reinhardt's opinion for the panel concluded that sexual orientation receives "heightened scrutiny" under equal protection. The opinion turned to "the Supreme Court’s most recent case on the relationship between equal protection and classifications based on sexual orientation": United States v. Windsor (2013), holding that Windsor was "dispositive of the question of the appropriate level of scrutiny in this case," even as the Court's majority opinion in Windsor "did not expressly announce the level of scrutiny it applied to the equal protection claim at issue." Judge Reinhardt correctly noted that the Court in Windsor did not apply a presumption of constitutionality or supply reasons for Congressional action in DOMA.
Windsor scrutiny “requires something more than traditional rational basis review.” Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny.
Thus, the Ninth Circuit's previous precedent applying rational basis to sexual orientation classifications was no longer valid. Applying this heightened scrutiny, the Ninth Circuit found that the peremptory challenge was unconstitutional:
permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation. Strikes based on preconceived notions of the identities, preferences, and biases of gays and lesbians reinforce and perpetuate these stereotypes.
In sum, the Ninth Circuit's extended Batson to sexual orientation classifications and used the term "heightened scrutiny" to comply with the doctrine that Batson did not apply to classifications that merited rational basis scrutiny.
However, one might be reading too much into the opinion to conclude that the Ninth Circuit has ruled that sexual orientation classifications now merit heightened scrutiny akin to "intermediate scrutiny." Indeed, the Ninth Circuit relies upon the United States Supreme Court's opinion in Windsor which it admits is less than clear about the level of scrutiny - - - and certainly much less clear than the Second Circuit's opinion in Windsor which determined and applied the intermediate level of equal protection scrutiny used in gender/sex classifications.
Instead, it seems that the Ninth Circuit read the "rational basis" exclusion from Batson to be the "mere" rationality test - - - often called the "anything goes" rational basis of Railway Express Agency v. New York (1949) (which the Ninth Circuit panel opinion did not cite) or Fed. Commc’n Comm’n v. Beach Commc’n, Inc. (1993) (which the Ninth Circuit did cite and quote). The "heightened scrutiny" that the Ninth Circuit finds - - - derived from Windsor - - - is akin to the "heightened rational basis" or "rational basis with bite" or "rational basis with teeth" that has become a common feature of equal protection doctrine for sexual orientation classifications. While the Ninth Circuit opinion does not stress "animus," it does discuss Department of Agriculture v. Moreno (1973), including stating that the Ninth Circuit previously "acknowledged that Moreno applied “‘heightened’ scrutiny.”
Certainly, this is an important opinion: it extends Batson to sexual orientation classifications. And it is also important to the litigation between two giant pharmaceutical corporations given that the case was remanded for a new trial. However, it is not a landmark opinion that substantively changes (rather than clarifies or renames) the level of scrutiny for sexual orientation classifications in all equal protection cases.
Monday, January 20, 2014
Jeremiah Goulka's "How Federal Judges Use and Abuse the Words of Martin Luther King Jr. in Their Decisions," argues that when MLK is quoted in a federal court opinion, it's probably supporting a result that MLK would not have supported.
Goulka describes himself as a former law clerk to a judge on the Fifth Circuit, a former US Attorney and a former Republican - - - important perspectives for evaluating his largely polemical piece. Here's a snippet:
In Vera v. Richards (1994), a panel of three Republican judges considered a Texas redistricting law that created three minority-majority congressional districts. Judge Edith Jones, a Reagan appointee whom both presidents Bush considered elevating to the Supreme Court, opened the decision by stating that the Voting Rights Act of 1965:
"marked the full maturity in American political life of the Founders' idea that "all men are created equal" and the Rev. Martin Luther King's hope that his children would be judged by the content of their character, not the color of their skin."
Ah, yes, the famous "content of their character" line. A little later in her introduction, she continues in the same vein:
"Racial gerrymandering is unconstitutional, but it is also morally wrong, inconsistent with our founding tradition and Martin Luther King's vision. The color of a person's skin or his or her ethnic identity is the least meaningful way in which to understand that person."
I can think of less meaningful ways to understand a person. (Do you like hot dogs?) You can guess which way they ruled.
This is worth a read on this MLK holiday. For a less provocative read, there is President Obama's Proclamation.
Friday, January 17, 2014
In a highly anticipated event today, President Obama delivered his remarks accompanied by a directive, Presidential Policy Directive/PPD-28, on "Signals Intelligence Activities," regarding NSA Surveillance. Recall that late last year a presidential advisory committee issued a report with specific recommendations, that one program has been subject to differing judicial interepretations - - - in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper, Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional - - - and that the national discussion on this issue is largely attributable to Edward Snowden.
While the judicial opinions did not specifically feature in Obama's remarks, Snowden did:
Given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or motivations. I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.
But the details, as usual, can be a bit more perplexing. For example, consider this qualification to "competitive advantage" :
Certain economic purposes, such as identifying trade or sanctions violations or government influence or direction, shall not constitute competitive advantage.
The Electronic Frontier Foundation released a "scorecard" before Obama's remarks and directive. Afterwards, it tweeted the results of its assessment of Obama's performance:
January 17, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, Foreign Affairs, International, State Secrets, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)
Thursday, January 16, 2014
In its opinion today in Schroeder v. Weighall, the Washington Supreme Court held a medical malpractice statute of limitations violated the state constitution's equality provisions.
The statute at issue, RCW 4.16.190, tolls the statute of limitations during the time a person suffers from a disability, including being a minor. However, subsection (2) of the statute is an exemption only for persons under the age of 18 and only with respect to actions under RCW 4.16.350, the statute governing claims for medical malpractice.
The court found the exemption provision unconstitutional under Washington Constitution Art. 1 §12 :
No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.
While the court noted that this provision could be "substantially similar" to the Fourteenth Amendment's Equal Protection Clause, it was also different and more protective and paid special attention to "undue political influence" that was "exercised by a privileged few."
The court applied a two prong test, first looking at whether there was a "privilege or immunity," at stake, easily concluding that the benefit in the statutory exemption was "limited liability-an immunity from suits pursued by certain plaintiffs." The court quickly turned to the mirror image of this benefit, concluding that the right to sue for what is essentially common law negligence was within these definitions.
The court then turned to the second prong of the test, considering whether there is a "reasonable ground" for "limiting medical malpractice defendants' liability to patients injured during minority," and noting that "reasonableness" under the state constitution was more rigorous that rational basis. The court carefully looked at the purported interests of the statute, and noted an inconsistency:
If the statute is to be justified on the basis that it will greatly reduce medical malpractice claims, it cannot also be justified on the ground that it will not prevent very many plaintiffs from having their day in court. If it is to be justified on the basis that it is a substantial wrong to permit even one stale medical malpractice claim to proceed, then there can be no rational explanation for the legislature's failure to eliminate tolling for other incompetent plaintiffs.
Again, however, the court indulged in a mirror image discussion, looking at the statutory scheme's affect on a "particularly vulnerable population not accountable for its status. While children are not a suspect or even semi-suspect class, the court did note that "the group of minors most likely to be adversely affected" by the statutory exemption are those "whose parent or guardian lacks the knowledge or incentive to pursue a claim on his or her behalf" or who are in state care.
While 7 of the 9 justices of the court assented to this opinion, authored by Justice Gordon McCloud, there was a dissenting opinion by Justice James M. Johnson, joined by Justice Susan Owens, arguing that the most deferential standard of scrutiny should apply and accepting the claims of legislative interest in reducing claims of medical malpractice.
The Washington Supreme Court's majority opinion is a well-reasoned example of the vibrancy of state constitutional equality provisions, including a somewhat unusual application to a statute of limitations provision.
Wednesday, January 15, 2014
Oklahoma District Judge Joe Heaton declined to find that the Oklahoma license plate violated the First Amendment or other constitutional rights of Keith Cressman in his opinion in Cressman v. Thompson.
Recall that the Tenth Circuit, in a divided opinion in June 2013, held that Cressman had made plausible allegations that the symbol on the Oklahoma license plate - - - arguably the “Sacred Rain Arrow” - - - could be the basis of a compelled speech claim, similar to the classic First Amendment case of Wooley v. Maynard.
But on remand, Judge Heaton found that the plate's image (pictured below and included as the final page on Judge Heaton's opinion) did not rise to the level of symbolic speech with a particularized message. Although stating that there should be a broad interpretation, Judge Heaton nevertheless held:
Viewed by itself, all the disputed image involves is a depiction of a Native American shooting a bow and arrow. There is nothing about the image that suggests the man is praying or that the arrow he is shooting is sacred. There is nothing about the image that suggests he is worried about rain, or the lack thereof. There is nothing about the image that suggests he believes in one god, no god, or several. It simply depicts a Native American shooting a bow and arrow.
Judge Heaton rejected the constitutional significance of the "other things" Cressman learned about the image through "research." He opined that the "fact that additional research is necessary to know or identify the message of which plaintiff complains is itself “strong evidence” that the image, as such, is not subject to constitutional protection." Further, the image on the license plate is "not an exact replica" of the "Sacred Rain Arrow” sculpture; the plate image has the arrow pointing at a 60 degree angle "a pose consistent with a variety of scenarios in which a bow and arrow might be used," while the sculpture "involves a Native American shooting his arrow almost vertically into the air, a pose which arguably is more suggestive of a spiritual motive or connection."
Additionally, Cressman did not object to the words "Native America" on the license plate, another distinction from Wooley v. Maynard's "Live Free or Die" New Hampshire license plate.
Judge Heaton's final paragraph expressed a lack of sympathy for Cressman along with a suggestion:
The absence of a constitutional violation does not, of course, mean that plaintiff lacks a practical solution to the problem as he sees it. Oklahoma provides a simple, inexpensive, and readily available alternative, in the form of a specialty plate, for those who object to any aspect of a standard plate, an option which plaintiff has exercised both before and since his concerns with the current standard license plate arose.
Tuesday, January 14, 2014
In a lengthy opinion today in Bishop v. United States (Smith), Judge Terence Kern of the Northern District of Oklahoma found unconstitutional the state constitutional amendment, article 2, §35 that defines marriage as consisting "only of the union of one man and one woman," and further that no law "shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."
The lawsuit, originally filed in 2004 soon after the state constitutional amendment, also challenged the federal DOMA, as well as other portions of the state "little DOMA" and includes several plaintiffs. As to these challenges, the judge found a lack of standing. However, as to the definitional section of article 2, §35 (above), known as "Part A" of the Oklahoma Constitutional Amendment, the judge found that the "Bishop couple" had standing - - - and that the provision violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
As to the Equal Protection claim, the judge rejected the argument by Smith, the Oklahoma county clerk, that Baker v. Nelson (1972) was binding precedent. More interestingly, the judge also rejected the argument that last Term's decision in Windsor v. United States, holding section 3 of the federal DOMA unconstitutional was determinative: "Both parties argue that Windsor supports their position, and both are right."
Judge Kern correctly observed:
The Windsor Court did not apply the familiar equal protection framework, which inquires as to the applicable level of scrutiny and then analyzes the law’s justifications. Instead, the Windsor Court based its conclusion on the law’s blatant improper purpose and animus. See id. at 2693. The Court reasoned that DOMA’s “unusual deviation” from the tradition of “accepting state definitions of marriage” was “strong evidence of a law having the purpose and effect of disapproval of the class.” Id. The Court concluded, based upon DOMA’s text and legislative history, that DOMA’s principal purpose “was to impose inequality.” Id. Thus, Windsor does not answer whether a state may prohibit same-sex marriage in the first instance. Nor does Windsor declare homosexuals a suspect class or discuss whether DOMA impacted a fundamental right, which would have provided this Court with a clear test for reviewing Part A [of the Oklahoma Constitutional Amendment].
The judge then applied the Tenth Circuit's framework for analyzing equal protection questions:
First, the Court asks “whether the challenged state action intentionally discriminates between groups of persons.” Second, after an act of intentional discrimination is identified, the Court must ask “whether the state’s intentional decision to discriminate can be justified by reference to some upright government purpose.”
By examining the legislative actions - - - including a press release - - - the judge found that the exclusion of the defined class was not a "hidden or ulterior motive," but was "consistently communicated to Oklahoma citizens as a justification" for the amendment.
For the next line of inquiry focusing on the justification for the discrimination, the judge rejected the argument that it was gender discrimination (relying on "common sense"), and concluded it could be best described as "sexual-orientation discrimination." The judge applied the familiar "rationality" standard, but rejected the "morality" government interest originally proffered, as well as the "negative impact on marriage" interest. While he did not use the label of "animus" for these interests, the import of the analysis is sympathetic to such a reading.
He similarly rejected the interests of "Encouraging Responsible Procreation/Steering Naturally Procreative Couples to Marriage," and "Promoting the “Optimal” Child-Rearing Environment," finding that while these interests might be legitimate, they were not being rationally served by the means chosen of prohibiting same-sex couples from marriage.
The judge concluded:
The Court permanently enjoins enforcement of Part A against same-sex couples seeking a marriage license. In accordance with the U.S. Supreme Court’s issuance of a stay in a nearly identical case on appeal from the District Court of Utah to the Tenth Circuit Court of Appeals, see Herbert v. Kitchen, U.S. Supreme Court Order in Pending Case 13A687 (Jan. 6, 2014), the Court stays execution of this injunction pending the final disposition of any appeal to the Tenth Circuit Court of Appeals.
Thus, same-sex marriages will not occur in Oklahoma as they did in Utah while the state government sought stays. Instead, the Tenth Circuit's expedited appeal in Herbert v. Kitchen is now also determinative of Oklahoma.
The Senate voted yesterday 55 to 43 to confirm Robert L. Wilkins to serve on the U.S. Court of Appeals for the D.C. Circuit. WaPo reports here. The confirmation marks the third time since the Senate abolished the filibuster for executive and lower-court nominees that the body voted by a bare majority to confirm one of President Obama's nominees to this court. We last posted on the issue here.
Monday, January 13, 2014
In brief, the answer it proposes is "no."
The report is authored by Peter Bergen, David Sterman, Emily Schneider, and Bailey Cahall. As Cyrus Farivar over at Ars Technica points out, the lead author Peter Bergen is well known as "a journalist and terrorism analyst who famously interviewed Osama bin Laden for CNN in 1997."
The report confirms federal District Judge Richard Leon's statement in his opinion in Klayman v. Obama that "the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature." (emphasis in original). Recall that Judge Leon issued a preliminary injunction against the surveillance, although he then stayed it.
Recall also that another federal district judge dismissed a complaint raising essentially the same issues a week later in American Civil Liberties Union v. Clapper.
With President Obama evaluating the NSA surevillance program including the Recommendations from President's NSA Surveillance Review Group and with the question of whether the NSA's surveillance extends to members of Congress being asked, this newest report deserves to be read closely. If there is a balance to be struck between security and liberty, the efficacy of the security measures are certainly relevant.
Friday, January 10, 2014
Supreme Court Grants Certiorari in Susan B Anthony Fund v. Driehaus on Ohio's Prohibition of False Election Statements
The United States Supreme Court granted certiorari today in Susan B Anthony Fund v. Driehaus raising an issue of ripeness with the First Amendment issue in the background.
The background of the case involves "Obamacare," the pro-life/anti-choice Susan B Anthony (SBA) Fund, Congressperson Steve Driehaus (pictured) and Ohio statutes that prohibit false statements in campaigns.
As the Sixth Circuit, explained, during the 2010 campaign, the SBA List wanted to put up a billboard in then-Congressman Driehaus's district criticizing his vote in favor of the Act. The planned billboard read: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." But the billboard never went up because the advertising company that owned the billboard space refused to put up the advertisement after Driehaus's counsel threatened legal action against it.
On October 4, 2010, Driehaus filed a complaint with the Ohio Elections Commission against SBA List claiming that the advertisement violated two sections of Ohio's false-statement statute. The first states that "[n]o person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials . . . shall knowingly and with intent to affect the outcome of such campaign . . . [m]ake a false statement concerning the voting record of a candidate or public official." Ohio Rev. Code § 3517.21(B)(9). The second section prohibits posting, publishing, circulating, distributing, or otherwise disseminating "a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate." Id . § 3517.21(B)(10).
The Sixth Circuit held that the claim was not ripe, reasoning that it could not show "an imminent threat of prosecution at the hands of any defendant" and thus could not "show a likelihood of harm to establish that its challenge is ripe for review." There was no hardship to SBA because its speech was not chilled, according to the Sixth Circuit: the only speech involved was the billboard and SBA List's president appeared on television and promised to "double down" to make sure its message flooded the congressperson's district.
Thus, the Sixth Circuit did not reach the First Amendment issue regarding Ohio's prohibition of false speech. On this issue, the Court's opinion holding unconstitutional the criminalization of false statements in the federal "Stolen Valor" Act in its 2012 opinion in United States v. Alvarez is sure to assume center stage. The Court will decide if there should be another chance to consider whether falsity should be categorically excluded from First Amendment protections of speech.
Rachel Maddow posits the possibility that the scandal surrounding New Jersey Governor Chris Christie and the traffic jam by the city of Fort Lee at the George Washington Bridge may have less to do with the election than with the New Jersey Supreme Court.
Much of Maddow's conjecture rests on the timing of the now infamous email "Time for some traffic problems in Fort Lee," sent on the morning of August 13, 2013 by a top Christie aide from her private email account to a Port of Authority official who responded "Got it."
But to understand the Maddow theory, one needs to return to 2010. Recall that as we discussed in May 2010, there was a potential "constitutional conflict" brewing over Governor Christie's non-"reappointment" of John Wallace, then the only African-American of the seven state justices on the New Jersey Supreme Court. And recall also that despite objections from retired members of the judicary, Christie reportedly found "laughable" any notion that politics was not part of the judicial appointment process, pointing to the fact that there would be another election in 2013.
But John Wallace was not the only NJ Supreme Court Justice whose reappointment would be at issue during Christie's first term. Another Justice, supported by Christie, was due before the Senate. And the NJ Senate Democrats - - - led by a legislator from Fort Lee - - - may not have been being co-operative. In any case, Christie withdrew his reappointment of that Justice the evening before the GW Bridge lane closures began.
Here's the video from the Rachel Maddow Show:
Worth a read with details is the discussion of MSNBC's Steve Benen.
Monday, January 6, 2014
Here's the entire text:
The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.
Note that Justice Sotomayor as the Circuit Justice referred the decision to the full Court, an expected but not necessarily routine process.
The Tenth Circuit itself had denied the properly filed emergency motion for stay, concluding it was not warranted and specifically noting that of the four factors governing a stay pending appeal, two - - - the likelihood of success on appeal and the threat of irreparable harm if the stay is not granted - - - are "most critical, and they require more than a mere possibility of success and irreparable harm, respectively."
The Tenth Circuit also directed expedited review.
The United States Supreme Court's stay thus halts the entering into of same-sex marriages which have been proceeding since the District Judge's order on December 20, but has no effect on the legality of the same-sex marriages entered into during that period.
Sunday, January 5, 2014
The D.C. Circuit on Friday ruled that an opinion of the Office of Legal Counsel that provided a legal justification for the FBI to use "national security letters" to subpoena telephone and financial records that it certifies are connected to an authorized national security investigation is exempt from public disclosure under the FOIA. The ruling in Electronic Frontier Foundation v. U.S. DOJ means that the OLC opinion will remain classified.
The court held that the OLC opinion met the deliberative process privilege because it was requested by the FBI in response to an Office of Inspector General Investigation into the Bureau's use of national security letters:
On the record before us, we hold that the OLC Opinion, which was requested by the FBI in response to the OIG's investigation into its information-gathering techniques, is an "advisory opinion, recommendation and deliberation comprising part of a process by which governmental decisions and policies are formulated," and is therefore covered by the deliberative process privilege. We also hold that the FBI did not "adopt" the OLC Opinion and thereby waive the deliberative process privilege. The OIG mentioned the OLC Opinion in its report, and a congressional committee inquired about the OLC Opinion, but the FBI never itself adopted the OLC Opinion's reasoning as its own. Finally, because the entire OLC Opinion is exempt from disclosure under the deliberative process privilege, we need not decide whether particular sections were properly withheld as classified, or whether some material is reasonably segregable from the material properly withheld.
Op. at 3.
Thursday, January 2, 2014
In his opinion granting a final injunction in Obergefell v. Kasich, federal Judge Timothy Black addressed a particular enforcement of Ohio's limitation of marriage to opposite sex couples. He also cited and relied upon an interesting conceptualization put forth by Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 Mich. L. Rev. 1421 (2011), available on ssrn.
As the title indicates, Sanders argues that an individual who legally marries in his or her state of domicile, then migrates to another state, has a significant liberty interest under the 14th Amendment’s Due Process Clause in the ongoing existence of the marriage, as conceptually and doctrinally distinguishable from the constitutional “right to marry.”
Recall that the facts in Obergefell are especially sympathetic: one of the partners was a hospice patient and the relief requested regarded the martial status and surviving spouse to be recorded on the death certificate. As NPR reported, the couple "chartered a special medical jet to Maryland, where gay marriage is legal, and held a simple ceremony on the runway. And recall also that Judge Black's preliminary injunction opinion last July was one of the first after the Court decided United States v. Windsor, declaring section 3 of DOMA unconstitutional, and used Justice Scalia's dissent as part of the rationale for expanding Windsor.
Although Judge Black's preliminary injunction opinion certainly considered the effect of the out-of-state marriage, in the permanent injunction opinion, Judge Black constitutionalizes this conception:
In situations like those of Plaintiffs, however, where same-sex couples legally marry outside of Ohio and then reside in Ohio, a different right than the fundamental right to marry is also implicated: here, the constitutional due process right at issue is not the right to marry, but, instead, the right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections.
The footnote to this passage credits Steve Sanders article:
The concept of the right to remain married as a liberty interest protected by the Due Process Clause is eloquently advanced by Professor Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 MICH. L. REV. 1421 (2011). This judge acknowledges significant reliance upon Professor Sanders’s learned (and more extended) analysis of the fundamental right to remain married.
In the text of the opinion, Judge Black then quotes Sanders' article as stating, "In identifying the right to remain married as fundamental, Professor Sanders points out that the “[l]aw favors stability in legal relationships, vindication of justified expectations, and preventing casual evasion of legal duties and responsibilities.”
There is much talk about whether and when legal scholarship matters. In our new "Scholarship Matters" series, we'll continue to note incidents of scholarly influence on legal doctrine.
January 2, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Family, Fourteenth Amendment, Interpretation, Opinion Analysis, Scholarship, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Chief Justice Roberts again highlighted the lack of resources for the judicial branch in his 2013 year-end report, emphasizing the effects of the sequestration in particular. At the same time, he emphasized the courts' cost-cutting measures.
Chief Justice Roberts wrote that the lack of resources is causing problems across the board:
Sequestration cuts have affected court operations across the spectrum. There are fewer court clerks to process new civil and bankruptcy cases, slowing the intake procedure and propagating delays throughout the litigation process. There are fewer probation and pretrial services officers to protect the public from defendants awaiting trail and from offenders following their incarceration and release into the community. There are fewer public defenders available to vindicate the Constitution's guarantee of counsel to indigent criminal defendants, which leads to postponed trials and delayed justice for the innocent and guilty alike. There is less funding for security guards at federal courthouses, placing judges, court personnel, and the public at greater risk of harm.
Chief Justice Roberts wrote that our judiciary is a "model for justice throughout the world." Still, he wrote, foreign jurists "do raise an eyebrow when I also point out the vital role of the Legislative Branch of government."
The report warned that foregoing requested funding (of $5.05 billion) for a "hard freeze" at the sequester level would have dire consequences:
The future would be bleak: The deep cuts to Judiciary programs would remain in place. In addition, faced with inflation-driven increases in the "must-pay" components of this account, the Judicial Conference would need to cut allocations to the courts nationwide by an additional three percent below fiscal year 2013 levels. Those cuts would lead to the loss of an estimated additional 1,000 court staff. The first consequence would be greater delays in resolving criminal cases. In the civil and bankruptcy venues, further consequences would include commercial activity, lost opportunities, and unvindicated rights. In the criminal venues, those consequences pose a genuine threat to public safety.
The report also warns of dangers to public defender services.
Still, there's a hopeful conclusion:
Both A Christmas Carol and It's a Wonderful Life have happy endings. We are encouraged that the story of funding for the Federal Judiciary--though perhaps not as gripping a tale--will too.