Wednesday, October 5, 2016

Is New York's Loitering for Prostitution Statute Unconstitutional?

In a nearly 100 page complaint filed in the federal court in D.H. v. City of New York, the plaintiffs argue that New York's Loitering for the Purpose of Engaging in a Prostitution Offense, NY Penal Code § 240.37[2], is unconstitutional on its face and as applied.  Represented by The Legal Aid Society, the central constitutional claims are that the statute is unconstitutionally vague under the due process clause and that its enforcement violates First Amendment rights to expression, Fourteenth Amendment rights to equal protection, and Fourth Amendment rights.

The intersections and distinctions between vagueness under the Due Process Clause and overbreadth under the First Amendment were elucidated by the United States Supreme Court in Holder v. Humanitarian Law Project (2010) and the complaint in D.H. might serve as a textbook example of these issues.  Essentially, the complaint alleges that the NY Penal Code section, §240.37[2] , does not provide people with adequate notice of the conduct they should avoid to preclude arrest and results in the inclusion of First Amendment protected speech, expressive conduct, and association.  Further, these lack of statutory guidelines have meant that law enforcement actions under the statute have been arbitrary as well as discriminatory on the basis of classifications involving race, ethnicity, gender, and gender identity.

In addition to the statutory arguments, plaintiffs allege that the NYPD guidelines and practices have failed to remedy the problems and have in fact exacerbated them.  One central allegation regards attire:

Furthermore, the purported guidance provided in the NYPD Patrol Guide is equally vague and otherwise flawed, thereby increasing arbitrary enforcement. For instance, the NYPD Patrol Guide instructs officers that an arrestee’s “clothing” is “pertinent” to the probable cause inquiry. At the same time, the NYPD Patrol Guide does not provide any objective criteria regarding what types of attire may or may not have probative value for purposes of establishing probable cause, thus encouraging officers to make arrests based on individual, subjective opinions regarding what clothing someone who might be “loitering for the purpose of prostitution” would wear.    In pre-printed affidavits provided by prosecutors (also referred to as supporting depositions), which prompt the arresting officer to describe “revealing” or “provocative” clothing, officers often respond by citing a wide range of innocuous attire, such as “jeans,” a “black pea coat” or a pair of leggings.

[¶ 54].  The "black pea coat" as grounds supporting a solicitation for prostitution charge attracted attention in 2013 when a judge dismissed a charge which was based on the defendant "wearing a black peacoat, skinny jeans which revealed the outline of her legs and platform shoes."  

The unconstitutional inequality in the application of NY Penal Code section, §240.37[2] is analogous to the equal protection problems in New York City's practice of stop and frisk.  Recall that a federal judge found NYC's practices violated equal protection in her opinion in Floyd v. City of New York, later stayed - - - and thereafter clarified - - - by the Second Circuit, followed by the City's new administration agreeing with the decision and abandoning the appeals.  One of the complaint's pendent state law claims is a violation of the city's own prohibition of bias-based profiling, NYC Admin. Code §14-151 (passed in 2013 by City Council overriding the then-mayor's veto).

Loitering statutes in general, and more specifically loitering (and even soliciting) for "criminal sex" statutes, whether that sex is criminalized because it is commercial, public, or "unnatural" (as in previous sodomy prohibitions), have always been constitutionally problematic.  And the use of dress or appearance to establish "probable cause" or to constitute elements of a crime are constitutionally suspect. It will be interesting to see whether or not the City defends the action, and if it does, how vigorously.


 [image: Moulin Rouge by Toulouse Latrec via]



October 5, 2016 in Current Affairs, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fourth Amendment, Gender, Interpretation, Race, Recent Cases, Sexual Orientation, Sexuality, Speech | Permalink | Comments (0)

Monday, September 26, 2016

SCOTUS ConLaw Cases Preview for 2016-17 Term

The United States Supreme Court hears only small fraction of cases: The Court hears about 80 cases a year, of the approximately 8,000 requests for review filed with the Court each year, flowing from the approximately 60, 000 circuit court of appeals decisions and many more thousands of state appellate court opinions. And of this small fraction, generally about half involve constitutional issues, including constitutional criminal procedure issues.

Not surprisingly then, with the new Term starting October 3, the traditional first Monday in October, there are only a handful of constitutional law cases included among the less than 30 the Court has already accepted.


The Court is set to hear two racial gerrymandering cases, both of which involve the tensions between the Voting Rights Act and the Equal Protection Clause with underlying political contentions that Republican state legislators acted to reduce the strength of Black voters; both are appeals from divided opinions from three-judge courts. In Bethune-Hill v. Virginia State Board of Elections, the challenge is to the three-judge court’s decision and order holding that a number of Virginia House of Delegates districts did not constitute unlawful racial gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Virginia concededly did consider race in the redistricting, but the more precise issue is an interpretation under current doctrine regarding whether race was the predominant (and thus unconstitutional) consideration. The three-judge lower court is faulted for requiring an “actual” conflict between the traditional redistricting criteria and race. The petitioners argue that “where a legislature intentionally assigns voters to districts according to a fixed, nonnegotiable racial threshold, “strict scrutiny cannot be avoided simply by demonstrating that the shape and location of the districts can rationally be explained by reference to some districting principle other than race.” If it were other-wise, they argue, even the most egregious race-based districting schemes would escape constitutional scrutiny. In McCrory v. Harris, a racial gerrymandering case involving North Carolina, the challenge is to a three-judge court’s decision finding a constitutional Equal Protection Clause violation. The plaintiff originally argued that the congressional map drawn by the NC Assembly in 2011 violated the Equal Protection Clause in two districts by making race a predominant factor and by not narrowly tailoring the districts to any compelling interest. North Carolina argues that the conclusion of racial predominance is incorrect and that it need not show that racial considerations were “actually necessary” as opposed to “having good reasons” under the Voting Rights Act. The North Carolina districts have been long controversial; a good timeline is here.

In another Equal Protection Clause case, the classification is sex rather than race.  In Lynch v. Morales-Santana, the underlying problem is differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child; the Second Circuit held that the sex discrimination was unconstitutional, subjecting it to intermediate scrutiny under equal protection as included in the Fifth Amendment. The United States argues that because the context is citizenship, only rational basis scrutiny is appropriate. This issue has been before the Court before. The last time was 2011 in Flores-Villar v. United States when the Court's per curiam affirmance by an "equally divided Court" upheld the Ninth Circuit’s finding that the differential residency requirement satisfied equal protection. In Flores-Villar, Kagan was recused. The Court hearing Morales-Santana, scheduled for oral argument November 9, will also seemingly be only eight Justices, but this time including Kagan.

Trinity Lutheran Church of Columbia, Mo. v. Pauley also includes an Equal Protection issue, but the major tension is between the Free Exercise of Religion Clause of the First Amendment and principles of anti-Establishment of Religion. Like several other states, Missouri has a so-called Blaine Amendment in its state constitution which prohibits any state monies being used in aid of any religious entity. It is concededly more expansive/restrictive than the US Constitution’s Establishment Clause in the First Amendment as the United States Supreme Court has interpreted it. Missouri had a program for state funds to be awarded to resurface playgrounds with used tires; the state denied the Trinity Lutheran Church preschool’s application based on the state constitutional provision. Trinity Lutheran argues that the Blaine Amendment violates both the Free Exercise Clause and the Equal Protection Clause, with the Eighth Circuit siding with the state of Missouri.

There are also several cases involving the criminal procedure protections in the Constitution.  Pena-Rodriguez v. Colorado involves a claim of racial bias on a jury in a criminal case. The Colorado Supreme Court resolved the tension between the “secrecy of jury deliberations” and the Sixth Amendment right to an impartial jury in favor of the former interest. The court found that the state evidence rule, 606(B) (similar to the federal rule), prohibiting juror testimony with some exceptions was not unconstitutional applied to exclude evidence of racial bias on the part of a juror.  Bravo-Fernandez v. United States involves the protection against “double jeopardy” and the effect of a vacated (unconstitutional) conviction. It will be argued in the first week of October. Moore v. Texas is based on the Eighth Amendment’s prohibition of cruel and unusual punishment, with specific attention to capital punishment and the execution of the mentally disabled. In short: what are the proper standards for states to make a determination of mental disability?

Finally - - - at least for now - - - the Court will also be hearing a constitutional property dispute.  Murr v. Wisconsin involves the Fifth Amendment’s “Taking Clause,” providing that private property cannot be “taken” for public use without just compensation. At issue in Murr is regulatory taking. The Court granted certiorari to a Wisconsin appellate court decision regarding two parcels of land that the Murrs owned since 1995; one lot had previously been owned by their parents. Under state and local law, the two lots merged. The Murrs sought a variance to sell off one of the lots as a buildable lot, which was denied. The Murrs now claim that the denial of the variance is an unconstitutional regulatory taking. The Wisconsin courts viewed the two lots as the “property” and concluded that there was no regulatory taking.

We will be updating this post as the Court adds more cases to its docket.

UPDATE September 29, 2016:  The Court granted certiorari to two important First Amendment cases.

September 26, 2016 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Current Affairs, Elections and Voting, Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Race, Religion, Sixth Amendment, Takings Clause | Permalink | Comments (0)

Saturday, September 17, 2016

Constitution Day 2016

It's Constitution Day - - - week - - - yet again.  And as we do every year, we commemorate it with a few notes.

First, there is the issue of the constitutionality of constitution day:

As we've said, it's quite possible that Constitution Day is itself unconstitutional. One of the classic discussions is from ConLawProf Kent Greenfield in 2005 where he argues:

The right to be free of government-compelled speech - even speech that is worthwhile and beneficial - has been a "fixed star in our constitutional constellation" for over sixty years. That quote comes from Justice Robert Jackson, writing for the Supreme Court striking down a law expelling students who refused to recite the Pledge of Allegiance. Even though the country was in the middle of World War II at the time, the Court recognized that patriotism must be voluntary to be meaningful. Jackson did not mince words: "Those who begin coercive elimination of dissent soon find themselves exterminating dissenters."

The same is true now. Though we are at war, if we have to mandate patriotism or respect for the constitution, then we have already lost.

In part, this is because Constitution Day is a "mandate":

Federal law mandates that:

Each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution.

Eleventh Amendment Department of Education regulations provide that the law:

requires that Constitution Day be held on September 17 of each year, commemorating the September 17, 1787 signing of the Constitution. However, when September 17 falls on a Saturday, Sunday, or holiday, Constitution Day shall be held during the preceding or following week.


And then there is the issue of whether we should be honoring the Constitution's inception or its reconstruction:

LawProf Colin Starger and others argue that the commemorative day should be February 3:

On that date in 1870, our nation ratified the last of the Civil War Amendments. That date symbolizes our commitment to reconstruct the Founders’ immoral compromise and place under national protection the inalienable rights of all the nation’s people.

 This year, President Obama's Presidential Proclamation stressed immigration - - - and included a mention of refugees - - - and also articulated a "living constitutionalism" theory:


America is more than a piece of land -- it is an idea, a place where we can contribute our talents, fulfill our ambitions, and be part of something bigger than ourselves. Each year on Citizenship Day, we celebrate our newest citizens who raise their hands and swear a sacred oath to join our American family. The journey they have taken reminds us that immigration is our origin story. For centuries, immigrants have brought diverse beliefs, cultures, languages, and traditions to our country, and they have pledged to uphold the ideals expressed in our founding documents. They come from all around the world, mustering faith that in America, they can build a better life and give their children something more. That is why I was proud to create the White House Task Force on New Americans, which is helping to build welcoming communities around our country and enhance civic, economic, and linguistic integration for immigrants and refugees. Through the Task Force, Federal agencies and local communities are working together to raise awareness about the rights, responsibilities, and opportunities of citizenship -- and to give immigrants and refugees the tools they need to succeed.

As a Nation of immigrants, our legacy is rooted in their success. Their contributions help us live up to our founding principles. With pride in our diverse heritage and in our common creed, we affirm our dedication to the values enshrined in our Constitution. We, the people, must forever breathe life into the words of this precious document, and together ensure that its principles endure for generations to come.



September 17, 2016 in Current Affairs, Executive Authority, Fourteenth Amendment, Theory | Permalink | Comments (0)

Wednesday, August 3, 2016

United States Supreme Court Stays Fourth Circuit Order in Transgender Bathroom Case

The Court today issued a stay in G.G. v. Glouster County School Board, the case from the Fourth Circuit concluding that Title IX's ban on sex discrimination,  20 U.S.C. § 1681(a), requires schools to provide transgender students access to restrooms congruent with their gender identity.  As we discussed,while the constitutional issues are not "front and center," the case implicates both the constitutional power of Executive branch agencies, federalism, and Equal Protection.

The stay opinion divides the Court, with Justices Ginsburg, Sotomayor, and Kagan dissenting without opinion. 

Justice Breyer - - - the crucial vote for the majority - - - writes separately to concur stating that he votes to grant the stay "as a courtesy" joining the four other Justices to "preserve the status quo (as of the time the Court of Appeals made its decision)," meaning presumably, before the Fourth Circuit rendered its decision.


[Caricature image of Justice Breyer by Donkey Hotey via]

August 3, 2016 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Gender, Separation of Powers, Supreme Court (US) | Permalink | Comments (1)

Friday, July 29, 2016

Fourth Circuit Enjoins North Carolina's Voting Amendments as Discriminatory

In its extensive opinion in North Carolina State Conference of the NAACP v. McCrory, the Fourth Circuit has permanently enjoined the implementation of North Carolina SL 2013-381’s photo ID requirement and changes to early voting, same-day registration, out-of-precinct voting, and preregistration.  The Voter Information Verification Act, the Fourth Circuit concluded, made a racial classification although it seemed neutral, reasoning that

on the day after the Supreme Court issued Shelby County v. Holder (2013), eliminating preclearance obligations, a leader of the party that newly dominated the legislature (and the party that rarely enjoyed African American support) announced an intention to enact what he characterized as an “omnibus” election law. Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.


In response to claims that intentional racial discrimination animated its action, the State offered only meager justifications. Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation.

The Fourth Circuit concluded that the North Carolina Voter Information Verification Act violated both the Fourteenth Amendment's Equal Protection Clause and §2 of the Voting Rights Act.  For both, the hurdle was finding the legislature acted with racially discriminatory intent.  Most of the opinion is devoted to this discussion. The Fourth Circuit reversed the district judge on this basis, writing that the judge seemed "to have missed the forest in carefully surveying the many trees," and ignoring "critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina."

In the Equal Protection analysis, the Fourth Circuit applied the well-established requirement of racial intent (as well as effects) from Washington v. Davis. In considering whether the seemingly-neutral voting requirements were enacted “because of,” and not “in spite of,” their discriminatory effect, citing Pers. Adm’r of Mass. v. Feeney (1979), the Fourth Circuit discussed the factors of Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977):

In Arlington Heights, the Court set forth a nonexhaustive list of factors to consider in making this sensitive inquiry. These include: “[t]he historical background of the [challenged] decision”; “[t]he specific sequence of events leading up to the challenged decision”; “[d]epartures from normal procedural sequence”; the legislative history of the decision; and of course, the disproportionate “impact of the official action -- whether it bears more heavily on one race than another.”

The Fourth Circuit then discussed these factors individually.  Importantly, on the sequence of events, the opinion stated that 

the General Assembly’s eagerness to, at the historic moment of Shelby County’s issuance, rush through the legislative process the most restrictive voting law North Carolina has seen since the era of Jim Crow -- bespeaks a certain purpose. Although this factor, as with the other Arlington Heights factors, is not dispositive on its own, it provides another compelling piece of the puzzle of the General Assembly’s motivation.

But, as the Fourth Circuit noted - - - and for which it faulted the district court - - - the factors should not be considered in isolation. Instead, Arlington Heights requires a totality of circumstances analysis. 

The Fourth Circuit having found that race was a factor in the enactment of the Voter Information Verification Act (emphasis in original), the burden shifted to the state to demonstrate that the law would have been enacted without this factor, by assessing "whether a law would have been enacted without a racially discriminatory motive by considering the substantiality of the state’s proffered non-racial interest and how well the law furthers that interest." The Fourth Circuit faulted the district judge for conducting this analysis through a "rational-basis-like lens," when such deference is "wholly inappropriate." 

The Fourth Circuit discussed each challenged provision of the Voter Information Verification Act. On the voter identification requirement specifically, the Fourth Circuit found Crawford largely inapplicable given that Crawford did not involve even an allegation of intentional race discrimination. It found that while preventing voter fraud is a valid government interest, the means chosen are both too narrow and too broad.  Similarly, the Fourth Circuit found that the other provisions could not satisfy the standard:

In sum, the array of electoral “reforms” the General Assembly pursued in SL 2013-381 were not tailored to achieve its purported justifications, a number of which were in all events insubstantial. In many ways, the challenged provisions in SL 2013-381 constitute solutions in search of a problem. The only clear factor linking these various “reforms” is their impact on African American voters. The record thus makes obvious that the “problem” the majority in the General Assembly sought to remedy was emerging support for the minority party. Identifying and restricting the ways African Americans vote was an easy and effective way to do so.

The Fourth Circuit panel was unanimous to this point, but divided as to the relief.  Judge Diana Gribbon Motz, wrote the panel's opinion except to Part V.B., from which she dissented.  Her dissent is from a permanent injunction as to the photo identification requirement given that the North Carolina legislature passed a "reasonable impediment exception" from that requirement.  She would"only temporarily enjoin the photo ID requirement and remand the case to the district court to determine if, in practice, the exception fully remedies the discriminatory requirement or if a permanent injunction is necessary."

The dissenting point is a small one.  The Fourth Circuit panel unanimously held that the North Carolina Voter Information Verification Act violates both the Equal Protection Clause and §2 of the Voting Rights Act.


 [image via]

July 29, 2016 in Current Affairs, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, Race, Recent Cases | Permalink | Comments (1)

Thursday, July 14, 2016

Agency Power, Executive Power, and Gender Equality in School Bathrooms

While the constitutional issues are not front and center in the controversies and litigation over gender identity and school bathroom access, the disputes certainly implicate constitutional issues of equal protection, federalism, unconstitutional conditions, and executive/agency as well as judicial powers.

A Virginia school board has filed a stay application in the United States Supreme Court pending a petition for writ of certiorari to the Fourth Circuit's opinion in G.G. v. Glouster County School Board.  In G.G., a divided panel, reversing the senior district judge, concluded that Title IX's ban on sex discrimination,  20 U.S.C. § 1681(a), requires schools to provide transgender students access to restrooms congruent with their gender identity. (The senior district judge had not reached the Equal Protection claim, so it was not before the Fourth Circuit.)  In construing Title IX, the Fourth Circuit relied upon a January 7, 2015 opinion letter from the United States Department of Education, Office for Civil Rights, with a similar conclusion.  The Fourth Circuit accorded deference to the agency interpretation of Title IX under Auer v. Robbins (1997), because the relevant regulation was ambiguous - - - perhaps not in the plain meaning, but in its application:

Although the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms. We conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading— determining maleness or femaleness with reference exclusively to genitalia—and the Department’s interpretation—determining maleness or femaleness with reference to gender identity. [citation omitted].  It is not clear to us how the regulation would apply in a number of situations—even under the Board’s own “biological gender” formulation. For example, which restroom would a transgender individual who had undergone sex-reassignment surgery use? What about an intersex individual? What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident? The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.

The Fourth Circuit panel rejected G.G.'s request to have the case reassigned to another district judge, but did reverse, vacate, and remand the district court's order dismissing the complaint.  The Fourth Circuit panel, in an unpublished opinion on July 12, denied the school board's motion for a stay pending appeal, again with one dissent. 

The stay application in the United States Supreme Court pending a petition for writ of certiorari argues that the Fourth Circuit's opinion in an "extreme example" of judicial deference to an administrative agency and is the "perfect vehicle" for the Court's reconsideration of Auer v. Robbins (1997).  The motion notes that several Justices have signaled such a reconsideration might be warranted, notably the late Justice Scalia, as well as Alito and Thomas, and Chief Justice Roberts.  The application also argues that the DOE and DOJ have "seized momentum" and issued further instructions (citing a May 13 DOE  "Dear Colleagues" Letter) which would further solidify Auer deference, making action by the Court necessary.

Meanwhile, thirteen states have filed a complaint and application for preliminary injunction in Texas, based on the same letter:

On May 13, 2016, following years of incremental preambles (“guidances,” “interpretations,” and the like), Defendants informed the nation’s schools that they must immediately allow students to use the bathrooms, locker rooms and showers of the student’s choosing, or risk losing Title IX-linked funding. And employers that refuse to permit employees to utilize the intimate areas of their choice face legal liability under Title VII. These new mandates, putting the federal government in the unprecedented position of policing public school property and facilities, inter alia, run roughshod over clear lines of authority, local policies, and unambiguous federal law.

The central challenge is failure to conform with the Administrative Procedure Act, including notice and comment for rule-making.  However, the complaint also alleges that the federal government defendants "violated the Spending Clause" by engaging in "unconstitutional coercion" by "economic dragooning."  The complaint relies on that portion of the "Obamacare" case, NFIB v. Sebelius, in which a plurality found constitutional issues with the medicaid expansion program.
This portion of the complaint is less than 2 pages (in a 39 page document) and is cursory at best, although perhaps these arguments have the potential to be developed.
In short, it seems issues of gender-identity will be the subject of much litigation, perhaps even at the United States Supreme Court, in the next few years.

[image via]

July 14, 2016 in Cases and Case Materials, Current Affairs, Equal Protection, Executive Authority, Federalism, Fourteenth Amendment, Gender, Interpretation, Sexuality, Theory | Permalink | Comments (0)

Monday, July 11, 2016

Daily Read: Black Lives Matter, Respectability Politics, and News Reporting

In a just-published article, Black Lives Matter and Respectability Politics in Local News Accounts of Officer-Involved Civilian Deaths: An Early Empirical Assessment, 2016 Wisconsin Law Review 541, ConLawProf Osagie K. Obasogie (pictured below) and UC Hastings law student Zachary Newman present a compelling discussion of how news media - - - and by extension the general public - - - engage in the politics of respectability with regard to allegations of police misconduct, focusing on the conduct or character of the victim. 

The authors argue that although " sustained media attention to Black Lives Matter may lead some to conclude that journalists have become more sensitive to how respectability politics can lead to inaccurate reporting and encourage more balanced descriptions of these events, our qualitative assessment of the selected data suggests that journalists’ reporting of these incidents continues to reflect a troubling respectability politics that minimizes the lives lost and overstates the legitimacy of police use of deadly force."

In looking at news reports from 2013 until July 2015, the authors conclude that

overall, as a qualitative matter, there is a notable discursive consistency across pre– and post–Black Lives Matter reporting on officer-involved killings, suggesting that the movement’s concerns over race and respectability are not reflected in journalists’ accounts. This overall finding is empirically supported by three persistent themes throughout the data: (1) a strong commitment to colorblindness in discussing the race of the parties involved, (2) the dominance of the police perspective in reporting these incidents, and (3) continued use of criminalizing language unrelated to the incident itself to characterize the victim’s respectability.

The authors insights could be extended to more recent events, including those of this past week, which will be sure to still be on the minds of law students in our classes and  this article could be a great introductory reading for 1L students.

Additionally, more must-read discussions of respectability politics including the events of the last week is over at Race and the Law Prof Blog, including Atiba Ellis's, On Respectability, the Dallas Shootings, #BlackLivesMatter, and Reasoned Discourse which links to that blog's online symposium on Respectability Politics.

July 11, 2016 in Current Affairs, Equal Protection, Fourteenth Amendment, Interpretation, News, Profiles in Con Law Teaching, Race, Reconstruction Era Amendments, Scholarship | Permalink | Comments (4)

Friday, July 1, 2016

Federal Judge Issues Preliminary Injunction Against Mississippi Law Seeking to Protect LGBT Discrimination

In a 60 page opinion in Barber v. Bryant, United States District Judge Carlton Reeves (pictured below) found Mississippi HB 1523, set to become effective July 1, constitutionally problematical under both the Establishment Clause and the Equal Protection Clause, and thus preliminary enjoined its enforcement.

The bill, Protecting Freedom of Conscience from Government Discrimination Act," sought to insulate the specific "sincerely held religious beliefs or moral convictions" that:
(a)  Marriage is or should be recognized as the union of one man and one woman;
(b)  Sexual relations are properly reserved to such a marriage; and
(c)  Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.

Judge Reeves characterized HB 1523 as a predictable overreaction to the Court's same-sex marriage opinion in Obergefell v. Hodges a year ago.  In discussing the debates around the HB 152 and its texts, Judge Reeves also noted that the challenges to HB 1523 were also predictable, providing his rationale for consolidating the four cases.

Judge Reeves then considered standing of the various plaintiffs as well as Eleventh Amendment immunity, followed by the established preliminary injunction standards which have at their heart the "substantial likelihood of success on the merits."

On the Equal Protection claim, Judge Reeves relied on Romer v. Evans, and found that the legislative history established animus in intent:

The title, text, and history of HB 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell. The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions. LGBT Mississippians, in turn, were “put in a solitary class with respect to transactions and relations in both the private and governmental spheres” to symbolize their second-class status.

Judge Carlton Reeves via

Judge Reeves also found that the law would have a discriminatory effect.  Judge Reeves applied the lowest level of scrutiny, but found that even "under this generous standard, HB 1523 fails." He agreed  with the State's contention that HB 1523 furthers its “legitimate governmental interest in protecting religious beliefs and expression and preventing citizens from being forced to act against those beliefs by their government" is a "legitimate governmental interest."  But concluded that the interest is "not one with any rational relationship to HB 1523."  Indeed, the court declared that "deprivation of equal protection of the laws is HB 1523’s very essence."

On the Establishment Clause claim, Judge Reeves rehearsed the history of the Clause before focusing on two conclusions: HB 1523 "establishes an official preference for certain religious beliefs over others" and "its broad religious exemption comes at the expense of other citizens."For this latter point, Judge Reeves interestingly relied on and distinguished the recent controversial Burwell v. Hobby Lobby construing RFRA to confer a religious conscience accommodation to closely-held corporations:

The difference is that the Hobby Lobby Court found that the religious accommodation in question would have “precisely zero” effect on women seeking contraceptive coverage, and emphasized that corporations do not “have free rein to take steps that impose disadvantages on others.” The critical lesson is that religious accommodations must be considered in the context of their impact on others.

Unlike Hobby Lobby, HB 1523 disadvantages recusing employees’ coworkers and results in LGBT citizens being personally and immediately confronted with a denial of service.

[citations omitted].

 Judge Reeves opinion is careful and well-reasoned, but is nevertheless sure to be appealed by Mississippi officials unless they alter their litigation posture.


July 1, 2016 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Establishment Clause, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0)

Monday, June 20, 2016

Cleveland RNC Convention Protest Zone Challenged

On behalf of Citizens for Trump, the ACLU has filed a complaint against the City of Cleveland for its Event Zone Permit Regulations, arguing that the regulations and the delayed permit processing, violate the First Amendment, as well as the Ohio Constitution and the Due Process Clause.

Central to the First Amendment claim is the contention that the "event zone" is far too large and 

apply far beyond the part of the city where the Convention activities will take place, and instead encompass a 3.3-square mile expanse that includes business districts and neighborhoods where people live, sleep and conduct their daily activities.

Cleveland zone

Additionally, the complaint alleges that the permitting regulations are unduly restrictive, limited in number, space, and time.  ("The City will not issue any permits for any kind of public gathering or parade in the Event Zone throughout the Convention period, except for one designated parade route that lies along the southern border of the Zone. The City will only allow permit holders to use that route for 50 minutes each, and only 18 of these 50-minute parade slots are available during the entire four-day Convention."

The Cleveland regulations ban a host of dangerous items within the zone.  This includes firearms, and interestingly guns are banned in the convention arena itself, a stance that has attracted some controversy given the Second Amendment interpretations by the RNC.  However, the ban in the zone extends beyond explosives, drones, fireworks, and rockets, to other less predictable items such as aerosol cans, locks, ladders, canned goods, and tennis balls.  There is an exemption for persons who live or work in the event zone, or are on law enforcement or medical duty.

Nevertheless, the ACLU challenge may be a difficult one. The district judge considering this challenge will undoubtedly be aware that the RNC 2016 convention is predicted to be volatile - - - inside and out. The doctrine on free speech zones and protest zones has been increasingly accepted by the courts with deference to the government.   Recall Wood v. Moss in which the United States Supreme Court unanimously if implicitly validated free speech zones used in a Presidential appearance.  While it was a Bivens action including a claim of qualified immunity, the Court importantly also rejected the claim of viewpoint discrimination - - - that the Secret Service’s manner of “zoning” the protestors discriminating against anti-Bush demonstrators and in favor of pro-Bush demonstrators. The 2004 RNC convention in New York City also had its share of First Amendment litigation, with the Second Circuit upholding the constitutionality of various arrests, again against a claim for damages.

Some good reporting by Eric Heisig and Andrew Tobias of; expect more as the Republic National Convention approaches, July 18-21, in Cleveland.


June 20, 2016 in Current Affairs, Federalism, First Amendment, Speech | Permalink | Comments (0)

Saturday, June 4, 2016

Daily Read: Clay v. United States (1971)

With the reported death of Muhammad Ali, f/k/a Cassius Clay, a look back at Clay v. United States (1971) seems appropriate. 

In Clay, the Court reversed Ali's conviction for "willful refusal to submit to induction into the armed forces." 

Bust photographic portrait of Muhammad Ali in 1967. World Journal Tribune photo by Ira Rosenberg via

The Department of Justice had asserted that Ali's claim for conscientious objector status did not meet the "religious" requirement, even as it had previously been expanded in the now-classic cases of United States v. Seeger (1965) and Welsh v. United States (1970).  The Department of Justice had stated:

‘It seems clear that the teachings of the Nation of Islam preclude fighting for the United States not because of objections to participation in war in any form but rather because of political and racial objections to policies of the United States as interpreted by Elijah Muhammad. * * * It is therefore our conclusion that registrant's claimed objections to participation in war insofar as they are based upon the teachings of the Nation of Islam, rest on grounds which primarily are political and racial.’

However, the Department of Justice abandoned that argument before the United States Supreme Court:

In this Court the Government has now fully conceded that the petitioner's beliefs are based upon ‘religious training and belief,’ as defined in United States v. Seeger,  ‘There is no dispute that petitioner's professed beliefs were founded on basic tenets of the Muslim religion, as he understood them, and derived in substantial part from his devotion to Allah as the Supreme Being. Thus, under this Court's decision in United States v. Seeger, his claim unquestionably was within the ‘religious training and belief’ clause of the exemption provision.' [quoting the DOJ Brief].  This concession is clearly correct. For the record shows that the petitioner's beliefs are founded on tenets of the Muslim religion as he understands them. They are surely no less religiously based than those of the three registrants before this Court in Seeger. See also Welsh v. United States.

[citations and footnote omitted]

A unanimous Supreme Court thus reversed the conviction in a per curiam opinion. (Thurgood Marshall, who had been Solicitor General, recused himself).

Justice William Douglas, in his inimitable style, concurred separately with a discourse on the Koran and the meaning of “jihad.” Douglas concluded:"What Clay's testimony adds up to is that he believes only in war as sanctioned by the Koran, that is to say, a religious war against nonbelievers. All other wars are unjust."

Muhammad Ali's Greatest Fight: Cassius Clay vs. the United States of America, the 2000 book by Howard Bingham and Max Wallace and subsequent 2013 HBO televised drama center on the litigation.



June 4, 2016 in Books, Courts and Judging, Current Affairs, First Amendment, Opinion Analysis, Race, Religion, Sports, Supreme Court (US), Television | Permalink | Comments (0)

Friday, June 3, 2016

Daily (Re)Reads: Judicial Impartiality

Republican Presidential Candidate Donald Trump has made news by charging that United States District Judge Gonzalo Curiel has “an absolute conflict” in presiding over the litigation about Trump University because Curiel is of Mexican heritage and Trump proclaims he is "building a wall" between the United States and Mexico: "It’s an inherent conflict of interest.”  Trump's comments are reported in The Wall Street Journal here and The Washington Post (with video) here.

Nypl.digitalcollections.94398bd0-6987-0130-fdaa-58d385a7b928.001.wBut while this allegation of bias seems unprecedented and even alarming, the notion that judges are biased because of their identity is nothing new. 

Recall the motions and eventual ruling regarding the federal district judge who heard the same-sex marriage trial, Perry v. Schwarzenegger; there was an argument he should be disqualified when he revealed he was gay.  As the court stated, "The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself." Moreover, these allegations of bias usually seem to be leveled against persons who have not traditionally been members of the judiciary. 

This is distinct from situations such as Caperton v. Massey Coal Co., a divided opinion in which the Court's majority held that the financial campaign contributions to an elected judge on the state's highest court mandated the judge's recusal as a matter of due process when the contributor was a litigant. 

And it is distinct from the decision due this Term from the Court, Williams v. Pennsylvania, argued in February, in which the bias involves a justice on the state's highest court reviewing a habeas petition that includes allegations of prosecutorial misconduct when that justice happened to be the District Attorney.

The notion of an independent - - - and impartial - - - judiciary, whether state or federal, is fundamental, but where and how the lines should be drawn can be difficult.  Chief Justice Roberts's dissenting opinion in Caperton illustrated the difficulties of line-drawing with 40 numbered issues (often containing multiple questions). 

No one, however, seems to have argued that a litigant's beliefs, for example about Mexico, that have nothing to do with the actual matter of litigation, for example about alleged fraudulent practices at Trump University, could lead to a credible claim that of judicial bias because the judge happens to have Mexican heritage.  If this were to be the rule, then some litigants with unsavory ideas would be able to claim bias against every judge. 

 [image via]

June 3, 2016 in Courts and Judging, Current Affairs, Due Process (Substantive), Elections and Voting, News, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Thursday, April 14, 2016

California Appellate Court Finds State Teacher Tenure Statute Constitutional

In its opinion in Vergara v. California today, the Court of Appeal for the Second Appellate District of California reversed the conclusion of Los Angeles Superior Court Judge Rolf Treu that the state tenure statutes for public school teachers violate the California Constitution's provisions on equal protection and provision of education. California's so-called teacher tenure statutes challenged in the action are provisions of California's Education Code governing teacher employment, including the permanent employment statute (§44929.21(b)); dismissal statutes (§§ 4493444938(b)(l) and (2) and 44944); and a seniority statute, "Last In First Out" or "LIFO" statute (§44955).

In a nutshell, the appellate court found:

Plaintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students. Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.

Reading Lesson at a Dame School, by Elias Martin (1739–1818) via

The appellate court implied that the trial judge had misconstrued his constitutional task:

With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court’s job is merely to determine whether the statutes are constitutional, not if they are “a good idea.” (McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 388.) Additionally, our review is limited to the particular constitutional challenge that plaintiffs decided to bring. Plaintiffs brought a facial equal protection challenge, meaning they challenged the statutes themselves, not how the statutes are implemented in particular school districts. Since plaintiffs did not demonstrate that the statutes violate equal protection on their face, the judgment cannot be affirmed.

The appellate court's 36 page opinion contains a careful rehearsal of the evidence before the trial judge as well as a discussion of his opinion.  In its own analysis, the appellate court considered the plaintiffs' original contentions that:

the challenged statutes create an oversupply of grossly ineffective teachers because (i) the tenure statute’s probationary period is too short, preventing the identification of grossly ineffective teachers before the mandated deadline for reelection; (ii) when grossly ineffective tenured teachers are identified, it is functionally impossible to terminate them under the overly burdensome and complicated dismissal statutes; and (iii) when reductions-in-force are required, the statute requires the termination of junior, competent teachers while more senior, grossly ineffective teachers keep their jobs only because they have seniority. Plaintiffs argued, and the trial court agreed, that two distinct classes of students—Group 1 (an “unlucky subset” of students within the population of students at large) and Group 2 (poor and minority students)—were denied equal protection because the challenged statutes led members of these groups to be assigned to grossly ineffective teachers.

The unanimous panel found that there was no "identifiable class" for equal protection purposes:  the group of "unlucky students" who are allegedly harmed by being assigned to grossly ineffective teachers have only one defining characteristic - - - they are assigned to grossly ineffective teachers.  As for the second group - - - identified as poor and minority students - - - the appellate court found that there was insufficient causation for a facial constitutional violation: "the statutes do not differentiate by any distinguishing characteristic, including race or wealth."  While it is possible, the appellate court noted, that the plaintiffs could have shown that the implementation of the statutes inevitably resulted in "consequential assignment of disproportionately high numbers of grossly inefficient teachers to schools predominantly serving low-income and minority students," the plaintiffs here did not make such a showing.

While the appellate court recognized there were "deplorable staffing decisions made by some local administrators," this was not sufficient to support a facial challenge to teacher tenure statutes. 

The appellate decision is much better reasoned than the trial judge's opinion, which derided the "uber due process" provided by the statutes and did not elaborate on the facts and evidence.  It is likely to stand.

April 14, 2016 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Opinion Analysis, Race, Recent Cases, State Constitutional Law | Permalink | Comments (0)

Thursday, March 31, 2016

South Africa's Constitutional Court on Corruption, Presidential and Legislative Responsibilities, and the Constitution

The controversy at the center of today's unanimous judgment by the South Africa Constitutional Court in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others arises from "improvements" to President Jacob Zuma's private residence in Nkandla done at public expense. 

Zuma's Nkandla Residence via

Although the cost of "security features" can be born by the state, other improvements - - - such as the visitors' centre, amphitheater, cattle kraal, chicken run, and swimming pool involved in this case - - - should not be state-funded and should be personally paid by the President.

The constitutional questions in the case are not only about apportioning costs, however, but are about apportioning power in the South Africa government. 

The South Africa Constitution establishes the "Public Protector" (sections 181, 182) as an independent entity with the power

a. to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;

b. to report on that conduct; and

c. to take appropriate remedial action.

Thuli Madonsela, Public Protector of South Africa, via

In this case, the Public Protector, Thuli Madonsela (pictured left) investigated the allegations of "irregular expenditure" and issues a report in 2014 directing the President to make reimbursements  and reprimand the Ministers involved in the expenditures; this report was also submitted to the National Assembly. 

The President basically refused to comply and the National Assembly "resolved to absolve the President of all liability."  Once the matter reached the Constitutional Court's exclusive jurisdiction, President Zuma essentially agreed that he would pay the costs of improvement.  Thus, the decision in the case is not surprising.

Nevertheless, the Constitutional Court's decision is an important one.  It strongly sides with the Public Protector and states that her remedial action taken against the President is "binding."  Additionally, it finds that both the President and the National Assembly acted unconstitutionally:

The failure by the President to comply with the remedial action taken against him, by the Public Protector in her report of 19 March 2014, is inconsistent with section 83(b) of the Constitution read with sections 181(3) and 182(1)(c) of the Constitution and is invalid.

The resolution passed by the National Assembly absolving the President from compliance with the remedial action taken by the Public Protector in terms of section 182(1)(c) of the Constitution is inconsistent with sections 42(3), 55(2)(a) and (b) and 181(3) of the Constitution, is invalid and is set aside.

Jennifer Elgot has a good basic overview of the 52 page decision and background controversy in her piece in The Guardian.

Pierre deVos, Constitutional Law Professor at University of Cape Town has a terrific discussion on his blog Constitutionally Speaking.



March 31, 2016 in Comparative Constitutionalism, Courts and Judging, Current Affairs, Executive Authority, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Monday, March 28, 2016

Constitutional Challenge to North Carolina's Anti-LGBT HB2 Filed

The controversial North Carolina statute passed last week, known as HB2, entitled "An Act to provide for single-sex multiple occupancy bathroom and changing facilities in schools and public agencies and to create statewide consistency in regulation of employment and public accommodations," has been challenged in a Complaint filed this morning, Carcaño v. McCrory, in the Middle District of North Carolina.   The plaintiffs are three individuals as well as the organizations ACLU North Carolina and Equality North Carolina.

As the Act's title and the complaint's description note, HB2 has two distinct aspects relating to LGBT issues.

720px-Seal_of_North_Carolina.svgFirst, it mandates that school boards and state agencies, including the university and community college systems, "shall require every multiple occupancy bathroom or changing facility to be designated for and only used by persons based on their biological sex."

Second, in Part III of the bill, it will "supersede and preempt" any "ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the State that regulates or imposes any requirement upon an employer pertaining to the regulation of discriminatory practices in employment."  The bill amended the state-wide policy prohibiting discrimination on the basis of "sex" to read "biological sex," thus making the intent clear.  As the complaint alleges, the city of Charlotte had passed a non-discrimination ordinance on the basis of sexual orientation and gender identity, prompting the legislative action. 

(Interestingly, Part II of the bill supersedes and preempts local ordinances relating to wage and hour provisions.)

Not surprisingly, the first count of the Complaint challenges HB2 based on the Equal Protection Clause of the Fourteenth Amendment. It argues that HB2 violates the equality rights of transgendered persons and sexual orientation minorities and that such classifications should be evaluated under heightened scrutiny.  It also contends that the North Carolina act was based on animus.  Recall that in Romer v. Evans the United States Supreme Court held that Colorado's Amendment 2, which similarly banned all local laws that prohibited discrimination on the basis of sexual orientation, violated the Equal Protection Clause, reasoning that the animus of the law was not a legitimate government purpose.  The Complaint here contains several expressions by legislators - - - for example,“You know, $42,000 is not going to cover the medical expenses when a pervert walks into a bathroom and my little girls are in there" - - -  that would presumably go to animus.

The Complaint also alleges violations of substantive due process under the Fourteenth Amendment. In Count II, the claim is a right to privacy for transgendered individuals.  In Count III, the claim is a more novel one based on the right to refuse medical treatment:

  • H.B. 2 forces transgender people to undergo medical procedures that may not be medically appropriate or available in order to access facilities consistent with their gender identity.
  • Not all transgender individuals undergo gender confirmation surgery. For some, the surgery is not medically necessary, while for others it is medically impossible. For example, because medical treatment for gender dysphoria is individualized, hormone treatment may be sufficient to manage the distress associated with gender dysphoria for some individuals. Surgery may be medically necessary for others who do not have health insurance coverage for it and cannot afford to pay for the surgery out-of-pocket.
  • Some states require proof of surgery before they will allow the gender marker on a birth certificate to be changed. For those born in North Carolina, state law requires proof of “sex reassignment surgery.” N.C. Gen. Stat. § 130A-11B.

 Recall that the United States Supreme Court recognized a substantive due process right to refuse medical treatment in Cruzan v. Director, Missouri Department of Health (1990).

The remaining counts, four and five, are statutory ones under Title IX, based on sex discrimination in educational facilities.

Given the constitutional precedents, it does seem as if North Carolina will have a difficult time defending the statute.

March 28, 2016 in Current Affairs, Due Process (Substantive), Equal Protection, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0)

Wednesday, March 9, 2016

United States District Judge: Same-Sex Ruling (and 14th Amendment) Do Not Apply in Puerto Rico

In a 10 page opinion, Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.

Recall that in October 2104, Judge Juan Perez-Gimenez had largely relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question" to find that there was no constitutional right to same-sex marriage.  In the appeal to the First Circuit, the Solicitor General of Puerto Rico decided that it would not defend the same-sex marriage ban.   And then the United States Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples. 

The First Circuit thus remanded Conde-Vidal v. Garcia-Padilla to Judge Juan Perez-Gimenez "for further consideration in light of Obergefell v. Hodges" and specifically stated "We agree with the parties' joint position that the ban is unconstitutional." The parties submitted a  Joint Motion for Entry of Judgment with a proposed order.

In rejecting the parties' joint motion, Judge Juan Perez-Gimenez contended that because Puerto Rico was a "stranger to the proceedings" in Obergefell which involved same-sex marriage bans in the Sixth Circuit (Michigan, Kentucky, Ohio, and Tennessee), it was not bound by the decision.  This reasoning is similar to some of the arguments most recently raised by some Justices on the Supreme Court of Alabama. 

Additionally - - - and perhaps with more legal grounding - - - he concluded that Obergefell does not apply to Puerto Rico because it is not a "state":

the fundamental right to marry, as recognized by the Supreme Court in Obergefell, has not been incorporated to the juridical reality of Puerto Rico.

The judge based this "juridical reality" on his conclusion that the doctrine of selective incorporation only applies to states and not Puerto Rico, or perhaps more correctly, that the Fourteenth Amendment itself is not applicable to Puerto Rico "insofar as it is not a federated state." 

Additionally, Judge Perez-Gimenez asks "does the Constitution follow the flag?" and concludes that under The Insular Cases (1901), territorial incorporation of specific rights is questionable:

Notwithstanding the intense political, judicial and academic debate the island’s territorial status has generated over the years, the fact is that, to date, Puerto Rico remains an unincorporated territory subject to the plenary powers of Congress over the island under the Territorial Clause.More importantly, jurisprudence, tradition and logic teach us that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment. As explained by the Supreme Court, “noting the inherent practical difficulties of enforcing all constitutional provisions ‘always and everywhere,’ the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed.” Boumedine v. Bush. 

Thus, this court believes that the right to same-sex marriage in Puerto Rico requires: further judicial expression by the U.S. Supreme Court; or the Supreme Court of Puerto Rico, see e.g. Pueblo v. Duarte, 109 D.P.R. 59 (1980)(following Roe v. Wade, 410 U.S. 113 (1973) and declaring a woman’s right to have an abortion as part of the fundamental right to privacy guaranteed under the Fourteenth Amendment); incorporation through legislation enacted by Congress, in the exercise of the powers conferred by the Territorial Clause, see Const. amend. Art. IV, § 3; or by virtue of any act or statute adopted by the Puerto Rico Legislature that amends or repeals Article 68 [prohibiting same-sex marriage].

In staking out a position regarding Puerto Rico's status, Judge Perez-Gimenez's opinion reverberates with the two cases regarding Puerto Rico presently before the United States Supreme Court even as it looks back to his earlier opinion hostile to the right of same-sex marriage. 800px-Map_of_USA_PR

[updated: March 11, 2016:  Further discussion of these issues available here].

March 9, 2016 in Congressional Authority, Courts and Judging, Current Affairs, Due Process (Substantive), Federalism, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)

Thursday, February 25, 2016

Apple Responds to Order to "Unlock" IPhone

In its Motion to Vacate filed today, Apple, Inc. argued that the Magistrate's Order Compelling Apple, Inc. to Assist Agents in Search of an Apple IPhone was not supported by the All Writs Act and is unconstitutional. 

The constitutional arguments are basically three:

First, embedded in the argument that the All Writs Act does not grant judicial authority to compel Apple to assist the government is the contention that such would violate the separation of powers.  Crucial to this premise is the Communications Assistance for Law Enforcement Act (CALEA), which Apple contends does not apply to Apple and which has not been amended to do so or amended to provide that companies must provide decryption keys. Absent such an amendment, which was considered as CALEA II but not pursued, the courts would be encroaching on the legislative role. 

For the courts to use the All Writs Act to expand sub rosa the obligations imposed by CALEA as proposed by the government here would not just exceed the scope of the statute, but it would also violate the separation-of-powers doctrine. Just as the “Congress may not exercise the judicial power to revise final judgments,” Clinton v. Jones (1997), courts may not exercise the legislative power by repurposing statutes to meet the evolving needs of society, see Clark v. Martinez (2005)(court should “avoid inventing a statute rather than interpreting one”) see also Alzheimer’s Inst. of Am. Inc. v. Elan Corp. (N.D. Cal. 2013) (Congress alone has authority “to update” a “technologically antiquated” statute “to address the new and rapidly evolving era of computer and cloud-stored, processed and produced data”). Nor does Congress lose “its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution” in times of crisis (whether real or imagined). Youngstown Sheet & Tube Co. v. Sawyer (1952).

[citations abbreviated].  Apple adds that "whether companies like Apple should be compelled to create a back door to their own operating systems to assist law enforcement is a political question, not a legal one," citing Baker v. Carr (1962). 

Second, Apple makes a cursory First Amendment argument that commanding Apple to "write software that will neutralize the safety features that Apple has built into the iPhone" is compelled speech based on content and subject to exacting scrutiny.  Apple also contends that this compelled speech would be viewpoint discrimination:

When Apple designed iOS 8, it wrote code that announced the value it placed on data security and the privacy of citizens by omitting a back door that bad actors might exploit. The government disagrees with this position and asks this Court to compel Apple to write new software that advances its contrary views.

Third, and even more cursorily, Apple makes a substantive due process argument under the Fifth Amendment.  Here is the argument in full:

In addition to violating the First Amendment, the government’s requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from “‘arbitrary deprivation of [its] liberty by government.’” Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010) (citation omitted); see also, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (“We have emphasized time and again that ‘[t]he touchstone of due process is protection of the individual against arbitrary action of government,’ . . . [including] the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” (citations omitted)); cf. id. at 850 (“Rules of due process are not . . . subject to mechanical application in unfamiliar territory.”).

Interestingly, there is no Fourth Amendment argument.

The main thrust of Apple's argument is the statutory one under the All Writs Act and the application of the United States v. New York Telephone Co. (1977) factors that the government (and Magistrate) had relied upon.  Apple disputes the burden placed on Apple that the Order would place.  Somewhat relevant to this, Apple contends that "Had the FBI consulted Apple first" - - - before changing the iCloud password associated with one of the relevant accounts - - - "this litigation may not have been necessary." 



February 25, 2016 in Cases and Case Materials, Congressional Authority, Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), First Amendment, News | Permalink | Comments (0)

Wednesday, February 24, 2016

Daily Read: Justice Scalia on Judicial Appointments as Political Prerogative

On this anniversary of Marbury v. Madison (decided February 24, 1803), and given the current controversies regarding the appointment of Justice Scalia's successor after his unexpected death, Justice Scalia's views on the political nature of judicial appointments, including those to the United States Supreme Court, is worth a read. 

Dissenting in Rutan v. Republican Party of Illinois (1990), Scalia wrote:

Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an "appropriate requirement." Ante, at 1. It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. See Marbury v. Madison, 1 Cranch 137 (1803). Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelmingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court.

The Court's majority opinion - - - authored by Justice William Brennan, a Democrat appointed to the United States Supreme Court by the Republican President Dwight Eisenhower - - - held that the Illinois governor's practice of implementing certain austerity measures in state government in accordance with political affiliation violated the First Amendment rights of government employees.  Brennan's opinion for the Court notably began:

To the victor belong only those spoils that may be constitutionally obtained. Elrod v. Burns (1976), and Branti v. Finkel (1980), decided that the  First Amendment forbids government officials to discharge or threaten to discharge public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved. Today we are asked to decide the constitutionality of several related political patronage practices — whether promotion, transfer, recall, and hiring decisions involving low-level public employees may be constitutionally based on party affiliation and support. We hold that they may not.

What the Constitution does - - - or does not - - - provide regarding the "spoils" of judicial appointment is being hotly contested.  And in this, Marbury v. Madison may be relevant as more than illustration should the controversy become subject to judicial review.

John Marshall Statute Outside United States Supreme Court Building via


February 24, 2016 in Courts and Judging, Current Affairs, First Amendment, History, Interpretation, Supreme Court (US) | Permalink | Comments (1)

Wednesday, February 17, 2016

Magistrate Orders Apple to "Unlock" iPhone of Deceased Shooter

A California Magistrate has issued an "Order Compelling Apple, Inc. to Assist Agents in Search" exactly as requested by the government, with the exception of the word "Proposed" crossed off in Order's title, that requires Apple to provide "reasonable technical assistance in obtaining access to data on the subject device."  The subject device is an Apple iPhone seized from a black Lexus; this is the black Lexus that was driven by the so-called "San Bernardino shooters."  The government's motion explains some of the technology involved and argues that the All Writs Act, 28 USC §1651, authorizes the Order.

Iphone_3GS-1The Order specifies that the "reasonable technical assistance" shall accomplish these functions:

  • (1) it will bypass or disable the auto-erase function whether or not it has been enabled;
  • (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically via the physical device port, Bluetooth, Wi-Fi, or other protocol available on the SUBJECT DEVICE; and
  •  (3) it will ensure that when the FBI submits passcodes to the SUBJECT DEVICE, software running on the device will not purposefully introduce any additional delay between passcode attempts beyond what is incurred by Apple hardware.

Apple is resisting the Order.  In an "open letter" to customers, the CEO of Apple has stated:

Rather than asking for legislative action through Congress, the FBI is proposing an unprecedented use of the All Writs Act of 1789 to justify an expansion of its authority.

The government would have us remove security features and add new capabilities to the operating system, allowing a passcode to be input electronically. This would make it easier to unlock an iPhone by “brute force,” trying thousands or millions of combinations with the speed of a modern computer.

The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.

Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the U.S. government.

We are challenging the FBI’s demands with the deepest respect for American democracy and a love of our country. We believe it would be in the best interest of everyone to step back and consider the implications.

While we believe the FBI’s intentions are good, it would be wrong for the government to force us to build a backdoor into our products. And ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect.

Over at ars technica, Dan Goodin argues:

It would be one thing for the court to order Apple to brute force this one device and turn over the data stored on it. It's altogether something else to require that Apple turn over powerful exploit software and claim that whatever digital locks are included can't be undone by a determined adversary. That's why it's no exaggeration for Cook to call Tuesday's order chilling and to warn that its prospects for abuse of such a backdoor are high.

Although the Order is directed at one "subject device," Apple's compliance with the Order would make all our devices subject to government search.


February 17, 2016 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Fourth Amendment, Privacy, Web/Tech | Permalink | Comments (3)

Saturday, February 13, 2016

In Memoriam: Justice Antonin Scalia

The Washington Post obituary is here.

In a statement Saturday, Chief Justice John G. Roberts said: “On behalf of the Court and retired Justices, I am saddened to report that our colleague Justice Antonin Scalia has passed away. He was an extraordinary individual and jurist, admired and treasured by his colleagues. His passing is a great loss to the Court and the country he so loyally served. We extend our deepest condolences to his wife Maureen and his family.”

In the first official notice of Justice Scalia’s death, Texas Gov. Greg Abbott said: “Justice Antonin Scalia was a man of God, a patriot, and an unwavering defender of the written Constitution and the Rule of Law. His fierce loyalty to the Constitution set an unmatched example, not just for judges and lawyers, but for all Americans. We mourn his passing, and we pray that his successor on the Supreme Court will take his place as a champion for the written Constitution and the Rule of Law.”

Some of the first reports were from Texas media, including one from a San Antonio outlet:

Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said.

Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa.

According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.

from the official Supreme Court biography:

Antonin Scalia, Associate Justice,was born in Trenton, New Jersey, March 11, 1936. He married Maureen McCarthy and has nine children - Ann Forrest, Eugene, John Francis, Catherine Elisabeth, Mary Clare, Paul David, Matthew, Christopher James, and Margaret Jane. He received his A.B. from Georgetown University and the University of Fribourg, Switzerland, and his LL.B. from Harvard Law School, and was a Sheldon Fellow of Harvard University from 1960–1961. He was in private practice in Cleveland, Ohio from 1961–1967, a Professor of Law at the University of Virginia from 1967–1971, and a Professor of Law at the University of Chicago from 1977–1982, and a Visiting Professor of Law at Georgetown University and Stanford University. He was chairman of the American Bar Association’s Section of Administrative Law, 1981–1982, and its Conference of Section Chairmen, 1982–1983. He served the federal government as General Counsel of the Office of Telecommunications Policy from 1971–1972, Chairman of the Administrative Conference of the United States from 1972–1974, and Assistant Attorney General for the Office of Legal Counsel from 1974–1977. He was appointed Judge of the United States Court of Appeals for the District of Columbia Circuit in 1982. President Reagan nominated him as an Associate Justice of the Supreme Court, and he took his seat September 26, 1986.

February 13, 2016 in Courts and Judging, Current Affairs, Supreme Court (US) | Permalink | Comments (0)

Tuesday, February 9, 2016

Federal District Judge Enters Preliminary Injunction Against Center for Medical Progress, Anti-Abortion Group

The Center for Medical Progress (CMP)  - - - including its founder David Daleiden, others (and their aliases) associated with the nonprofit, as well as "fake" companies - - - has been in the news a great deal of late. 

Daleiden and employee Merritt have recently been indicted in connection with an “investigation” of Planned Parenthood and the publication of a “heavily edited” video charging Planned Parenthood with unauthorized selling of fetal tissue. The video has prompted some lawmakers to urge defunding of Planned Parenthood and, interestingly, the grand jury indictment of Daleiden and Merritt in Texas sprung from an inquiry into whether Planned Parenthood had violated any criminal laws.  Planned Parenthood has recently sued CMP under RICO and for various tort-like claims. 

Judge William Orrick of the Northern District of California has issued a preliminary injunction that some might view as a prior restraint against CMP and its associates in an Order in National Abortion Federation v. Center for Medical Progress.  In July, Judge Orrick issued a TRO.  The discovery orders and motions were quite contentious, with CMP seeking relief from the Ninth Circuit, which was denied, and Justice Kennedy (in his role as Justice for the Ninth Circuit) refusing to intervene. The preliminary injunction prohibits:

(1) publishing or otherwise disclosing to any third party any video, audio, photographic, or other recordings taken, or any confidential information learned, at any NAF annual meetings;

(2) publishing or otherwise disclosing to any third party the dates or locations of any future NAF meetings; and

(3) publishing or otherwise disclosing to any third party the names or addresses of any NAF members learned at any NAF annual meetings.

Image by Jacek Halicki circa 1982 via

This injunction relates primarily to the enforcement of a “confidentiality agreement” required by attendees of the NAF national conference, which Center for Medical Progress admitted violating, engaging in over 250 hours at each of two conferences (2014 and 2015), including of personal conversations, intended - - - as CMP founder Daleiden admits, to “trap people into saying something really messed up” and to say the words “fully intact baby.” Judge Orrick found that enforcement of the confidentiality agreement does not violate the First Amendment, citing Cohen v. Cowles Media (1991). Judge Orrick also found that this was not a “typical ‘newsgathering’ case” in which "prior restraints" would be disfavored, but instead had exceptional circumstances:

The context of how defendants came into possession of the NAF materials cannot be ignored and directly supports preliminarily preventing the disclosure of these materials. Defendants engaged in repeated instances of fraud, including the manufacture of fake documents, the creation and registration with the state of California of a fake company, and repeated false statements to a numerous NAF representatives and NAF members in order to infiltrate NAF and implement their Human Capital Project. The products of that Project – achieved in large part from the infiltration – thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions (at least with respect to the NAF materials) of criminal misconduct. Defendants did not – as Daleiden repeatedly asserts – use widely accepted investigatory journalism techniques. Defendants provide no evidence to support that assertion and no cases on point.

One of the cases that Judge Orrick's footnote distinguishes is Judge Winmill's decision in Animal Defense League v. Otter, finding Oregon's ag-gag law unconstitutional as a violation of the First Amendment, which is presently on appeal to the Ninth Circuit.  Undoubtedly, Center for Medical Progress will eventually follow the path to the Ninth Circuit.  Taken together, these cases raise controversial issues about the First Amendment's protection for what some might name "investigative journalism" and what others view as "illegal actions."

February 9, 2016 in Abortion, Current Affairs, First Amendment, Medical Decisions, Opinion Analysis, Reproductive Rights, Speech | Permalink | Comments (0)