Wednesday, October 22, 2014

Pennsylvania's New Prisoner Speech Statute

By its terms, the new "Revictimization Act" passed by the Pennsylvania legislature and signed into law by the Governor today is more than a bit vague.  It provides:

Section 1304. Revictimization relief.

          (a)  Action.--In addition to any other right of action and any other remedy provided by law, a victim of a personal injury crime may bring a civil action against an offender in any court of competent jurisdiction to obtain injunctive and other appropriate relief, including reasonable attorney fees and other costs associated with the litigation, for conduct which perpetuates the continuing effect of the crime on the victim.

          (b)  Redress on behalf of victim.--The district attorney of the county in which a personal injury crime took place or the attorney general, after consulting with the district attorney, may institute a civil action against an offender for injunctive or other appropriate relief for conduct which perpetuates the continuing effect of the crime on the victim.

          (c)  Injunctive relief.--Upon a showing of cause for the issuance of injunctive relief, a court may issue special, preliminary, permanent or any other injunctive relief as may be appropriate under this section.

         (d)  Definition.--As used in this section, the term "conduct which perpetuates the continuing effect of the crime on the victim" includes conduct which causes a temporary or permanent state of mental anguish.

468px-Mumia2Press reports, including a segment on Democracy Now, make clear that the statute is directed at Mumia Abu-Jamal (pictured right).   Before signing the bill, the Governor reportedly visited a plaque commemorating the police officer Abu-Jamal was convicted of killing; the Governor was accompanied by the police officer's widow.  The Governor's  remarks stated that "convicted felons in prison" have "surrendered their rights" and further that "nobody has a right to continually taunt the victims of their violent crimes in the public square."

Whether any injunction against Mumia Abul-Jamal for making a speech to a graduating class - - - seemingly the incident that provoked this law - - - could survive a First Amendment challenge is doubtful.  Recall that the United States Supreme Court held unconstitutional the so-called "Son of Sam" law in Simon & Schuster v. Crime Victims Board (1991).  More recently, the Court decided Snyder v. Phelps (2011) essentially holding that free speech trumped the tort of intentional infliction of emotional distress.  As for prisoners, the applicable standard under Turner v. Safley (1987) interrogates the curtailment of First Amendment rights in relation to "legitimate penological interests."  Here, it seems, the government interest is far removed from penological interests, but instead focuses upon the interests of preventing "revictimization."

This might make an excellent in-class exercise for ConLawProfs.  Or perhaps it is so easy? 

It's sure to be challenged.

UPDATE: And here's the challenge.

October 22, 2014 in Current Affairs, First Amendment, Speech | Permalink | Comments (2) | TrackBack (0)

Friday, October 17, 2014

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

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

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

TomHorne_PenOfcDesk-3

 

 

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

Wednesday, October 15, 2014

Daily Read (and Videos): James Risen on James Risen

With the denial of certiorari in James Risen's case by the United States Supreme Court in June 2014, from the Fourth Circuit's divided opinion in United States v. Sterlingthe situation of James Risen is in limbo.  In large part, it was Risen's book, State of War that led to his current difficulties because he will not reveal a source. 

19484530Now Risen has a new book, Pay Any Price: Greed, Power, and Endless War, just reviewed in the NYT.  As part of the book promotion - - - but also quite relevant to the case against Risen - - - Risen has made several media appearances of note, with the twist on the book title being that it's James Risen who is prepared to "pay any price" to protect his journalistic integrity (and by implication resist governmental power).

Perhaps the most populist of Risen's appearances is in an extended segment of the television show "60 minutes" including not only James Risen but others.  The segment explains and situates the controversy, including its current status under President Obama.  It also includes statements by General Mike Hayden that he is at least "conflicted" about whether Risen should be pursued for not divulging his source(s), even as Hayden expresses his view that NSA surveillance is "warantless but not unwarranted." 

The entire segment is definitely worth watching:

 

 

 

Springboarding to some extent from General Hayden's remarks is Risen's extensive interview with Amy Goodman on Democracy Now (full video and the helpful transcript is here), in which Risen talks about his arguments in the book and a bit about his own predictament, concluding by saying:

AMY GOODMAN: So, you’re covering the very people who could put you in jail.

JAMES RISEN: Yeah, sometimes, yes. As I said earlier, that’s the only way to deal with this, is to keep going and to keep—the only thing that the government respects is staying aggressive and continuing to investigate what the government is doing. And that’s the only way that we in the journalism industry can kind of force—you know, push the government back against the—to maintain press freedom in the United States.

A third noteworthy appearance by Risen is his interview by Terry Gross on NPR's Fresh Air (audio and transcript available here).  One of the most interesting portions is near the end, with the discussion of the contrast to the celebrated Watergate investigation of Woodward and Bernstein and Risen's solution of a federal shield law for reporters.

For ConLawProfs teaching First Amendment, these "sources" could be well-used.

October 15, 2014 in Books, Cases and Case Materials, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, International, Privacy, Recent Cases, Speech, State Secrets, Theory, War Powers, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

Daily Videos: "Citizen Four" and Edward Snowden Interviews

With the release of "Citizen Four," the film by Laura Poitras on Friday, two videos are worth a watch.

First, here is a Q&A session with Laura Poitras at the 52nd New York Film Festival on October 10 after a premier of the film.

 

 

Second, here is a "virtual interview" with Edward Snowden from the New Yorker Festival - - - including in the first minute or so the official trailer of the film (also here) and an extended discussion with Snowden:

 

 

October 14, 2014 in Current Affairs, Due Process (Substantive), Executive Authority, Film, First Amendment, Foreign Affairs, International, News, Speech, Theory, War Powers, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Friday, October 10, 2014

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

Updated:

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

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

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

UPON CONSIDERATION of the application of counsel for the applicants,

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

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

What does Justice Kennedy have in mind?

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Caricature of Justice Kennedy by Donkey Hotey via

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

Here's the text of that Order:

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

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

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

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

 

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

Monday, September 29, 2014

Supreme Court Stays Injunction Mandating Ohio Early Voting

In a closely divided vote, the United States Supreme Court has issued a stay of the Sixth Circuit's affirmance of an injunction that would require early voting to begin in Ohio tomorrow, September 30.

Here's the entire Order:

The application for stay presented to Justice Kagan and by her referred to the Court is granted, and the district court’s September 4, 2014 order granting a preliminary injunction is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. 

Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application for stay.

September 29, 2014 in Courts and Judging, Current Affairs, Elections and Voting, Equal Protection | Permalink | Comments (0) | TrackBack (0)

Friday, September 26, 2014

Sixth Circuit Rules Ohio's New Voting Scheme Likely to Violate Equal Protection

With quick dispatch, the Sixth Circuit has issued its unanimous  opinion in Ohio State Conference of the NAACP v. Husted, affirming District Judge Peter Economus's decision earlier this month issuing a preliminary injunction enjoining the Ohio legislature's amendments to the election code that limited early in-person voting.

The Sixth Circuit rejected Ohio Secretary of State Husted's claim that the district judge's extensive findings of fact were clearly erroneous.  Likewise, the Sixth Circuit rejected the argument that the district judge should have applied rational basis scrutiny in the equal protection claim, holding that the district judge was correct in applying the "flexible Anderson-Burdick" test, articulated as

A court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs’ rights.”

Burdick v. Takushi, 504 U.S. 428, 434 (1992).  The Sixth Circuit moreover found that the district judge applied the test correctly. The opinion specifically discussed Ohio's asserted  justifications - - - preventing voter fraud, containing costs, and uniformity - - - and found that Ohio did not demonstrate that these interests outweighed the burdens on voters.

In the last third of the opinion, the court analyzed the Section 2, Voting Rights claim  (Voting Rights Act of 1965, 42 U.S.C. § 1973), again agreeing with the district judge.

This means that the Sixth Circuit validated the district judge's order requiring early voting provisions that become effective in just a few days, on September 30.

Ohio has already filed an application to the United States Supreme Court for a stay.  As Sixth Circuit Justice, Justice Kagan may rule on the application or refer it to the full Court.

  Voter-registration

 

September 26, 2014 in Current Affairs, Elections and Voting, Equal Protection, Federalism, Opinion Analysis | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 17, 2014

Mary Bonauto and Sarah Deer Named MacArthur Fellows

This year's MacArthur Fellowships included some well known advocates for social justices whose work involves constitutional law.

Mary Bonauto (pictured below) is one of the 21 people selected as a 2014 MacArthur Fellow for her work as a "civil rights lawyer."

Bonauto_2014_hi-res-download_2_1

Here's the beginning of the announcement:

Mary L. Bonauto is a civil rights lawyer whose powerful arguments and long-term legal strategies have led to historic strides in the effort to achieve marriage equality for same-sex couples across the United States. The Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD) since 1990, much of her early work focused on adoption and parenting, censorship, hate crimes, and discrimination in jobs and public accommodations.

More description as well as a video on the MacArthur site here.

LawProf Sarah Deer (pictured below) is another of the 21 recepients.

Deer_2014_hi-res-download_3

Here's the beginning of the announcement:

Sarah Deer is a legal scholar and advocate leveraging her deep understanding of tribal and federal law to develop policies and legislation that empower tribal nations to protect Native American women from the pervasive and intractable problem of sexual and domestic violence.

More description as well as a video on the MacArthur site here.

Additionally, John Henneberger of Texas Low Income Housing Information Service and Jonathan Rapping of Gideon's Promise were named as fewllos.

 

such as securing fair and affordable housing (John Henneberger), protecting civil rights (Mary L. Bonauto), and ensuring equal access to justice for both the victims of crime (Sarah Deer) and the accused (Jonathan Rapping); - See more at: http://www.macfound.org/press/press-releases/21-extraordinarily-creative-people-who-inspire-us-all-meet-2014-macarthur-fellows/#sthash.qdsCJsvk.dpuf

September 17, 2014 in Current Affairs, Gender, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 1, 2014

Daily Read: Zephyr Teachout on (Anti-) Corruption

In her new book, Corruption from Harvard University Press, ConLawProf Zephyr Teachout argues that campaign finance reform is constitutional and that the anti-corruption principle is one that originalists should embrace rather than disparage.

CorruptionHere's a bit from the publisher's description:

When Louis XVI presented Benjamin Franklin with a snuff box encrusted with diamonds and inset with the King’s portrait, the gift troubled Americans: it threatened to “corrupt” Franklin by clouding his judgment or altering his attitude toward the French in subtle psychological ways. This broad understanding of political corruption—rooted in ideals of civic virtue—was a driving force at the Constitutional Convention.

For two centuries the framers’ ideas about corruption flourished in the courts, even in the absence of clear rules governing voters, civil officers, and elected officials. Should a law that was passed by a state legislature be overturned because half of its members were bribed? What kinds of lobbying activity were corrupt, and what kinds were legal? When does an implicit promise count as bribery? In the 1970s the U.S. Supreme Court began to narrow the definition of corruption, and the meaning has since changed dramatically. No case makes that clearer than Citizens United.

Teachout has argued her position in op-eds in the Washington Post and in Politico after the Court's decision last term in McCutcheon v. FEC, (more of our McCutcheon discussion is here, here, here, and here). 

Teachout wuAdditionally, Teachout - - - along with Tim Wu, also a law professor - - -  is running for state wide office in New York.  Teachout is running for Governor against the incumbent Andrew Cuomo and Wu is running for Lieutenant Governor in next week's primary election.  (Teachout prevailed in lawsuits brought by the Cuomo campaign challenging her eligibility based on residency).   Interestingly, the New York Times endorsed Wu, but did not endorse either Teachout or Cuomo in the Governor's race, citing Teachout's lack of demonstrated "breadth of interests and experience needed to govern a big and diverse state" and Cuomo's  failure to keep his "most important promise" of addressing "corruption."  The primary is September 9.

September 1, 2014 in Books, Campaign Finance, Current Affairs, First Amendment, Profiles in Con Law Teaching, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, August 28, 2014

The Difficulty of Discussing the Facebook Threats Going to Supreme Court in Elonis v. United States

As we noted in June, the United States Supreme Court has granted certiorari in Elonis v. United States, a case regarding a criminal conviction for threats against his estranged wife and others posted on Facebook.   We've had to amend that post for reasons explained below.

As presented in the certiorari question, the issue is:

Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

However, in its Order, the Court stated:

In addition to the question presented by the petition, the parties are directed to brief and argue the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."

6a00d8341bfae553ef01a73dd9fb88970d-320wi
Thus, Elonis will be a case in which the statutory interpretation and the First Amendment are intertwined.

The Third Circuit panel opinion unanimously upheld the conviction of Anthony Elonis under 18 U. S. C. §875(c), rejecting his contention that the statute requires subjective proof of his intent to threaten, rather than objective proof.  There is a split in circuits on whether subjective intent is required to make the statute constitutional after the Court's decision in Virginia v. Black in which the Court declared a Virginia statute provided that cross-burning was "prima facie evidence" of a intent to intimidate. 

The doctrine of "true threats" has long been a fraught one.  As in other oft-called categorical exclusions from the First Amendment, the operative legal query is definitional: if the speech is a "true threat," the speech is not protected; if it is not a "true threat," then it is protected speech.  The Court's grant of certiorari may - - - or may not - - - indicate that some Justices found that Elonis's facebook postings failed to rise to the level of true threats.  Undoubtedly, however, this case will be watched not only by those interested in "free speech on the internet" but also by those interested in "intimate partner violence."

At times, this inquiry becomes grammatical.  For example, the Third Circuit found that a particular posting that Elonis claimed was conditional and therefore could not be a "true threat," could have reasonably been found by a jury to be a true threat. 

The Third Circuit extensively quotes the facebook postings of Elonis.

But for bloggers, requoting this language can run afoul of the policies of internet providers, servers, and search engines regarding profanity and "adult content."   It's an interesting illustration of the limits of the First Amendment by the state action doctrine.  It leaves the blogger with several choices, including trying to use dashes or asteriks in words or attempting to link more specifically to the opinion for the quoted passages (although links are also covered by most "adult content" policies, albeit more difficult to detect).

It will be interesting to see what language choices are made by the advocates, the Court, and those reporting on the opinion.

 

August 28, 2014 in Current Affairs, First Amendment, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2014

Can City of Ocala Ban the Saggy Pants Style on Government Property?

This summer, the city of Ocala, Florida passed Ordinance 2014-44 , prohibiting the style of saggy pants on city property.  Tonight, the city officials will reconsider the ordinance in light of threatened legal action.

Ocala is not the first municipality to try to ban the style.  But these bans have constitutional issues.  While First Amendment challenges of free expression have not been successful on the grounds that the style does not convey the necessary particularized message,  challenges based on substantive due process do have merit. 

The ordinances generally state as their purposes "decency" and "morals," but there is a problem prohibiting showing underwear.  Here's the language from the Ocala ordinance:

It is unlawful for any person, while on city owned property, to knowingly or intentionally wear pants below the person's natural waistline in a manner that leaves the person's underwear or bare buttocks exposed. A person's underwear is "exposed" if, when measured vertically, more than two inches of it is visible. A person's bare buttocks is "exposed"person's intergluteal cleft is visible.

 As a judge from another Florida city - - - Riveria Beach - - - held, such a ban violates basic liberty interests under the due process clause.  As for the "intergluteal cleft" being visible, there are real questions whether that can constitutionally be included in "indecent exposure." 

It is oft-stated that "saggy pants" are a foolish style.  But fashions, of course, change.  In a 1937 case, People v. O’Gorman, 274 N.Y. 284, 8 N.E.2d 862 (1937),  New York’s highest court struck down a Yonkers ordinance that prohibited any person over the age of 16 from appearing in public “in a bathing costume” or “in other than customary street attire.”   The defendants included a woman who wore “white sandals, no stockings, yellow short pants and a colored halter, with a yellow jacket over it and no hat”  and a man who “had on white sneakers, white anklets, short socks, yellow trunks, short pants, a blue polo shirt, brown and white belt, no hat.”  Maybe they looked “foolish” to their contemporaries, but as the court declared, the “Constitution still leaves some opportunity for people to be foolish if they so desire.”  

Moreover, it's important to be attentive to the equal protection problems that the criminalization of saggy pants raises.

There is more discussion and analysis of saggy pants bans and the limits of criminalizing indecent exposue in Dressing Constitutionally (Cambridge University Press, 2013).

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 image via

August 20, 2014 in Current Affairs, Due Process (Substantive), Equal Protection, Fourteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 13, 2014

Fourth Circuit Denies Stay in Virginia Same-Sex Marriage Case

Without analysis, the Fourth Circuit today in Bostic v. Schaeffer entered its  Order denying the stay of its opinion that Virginia's ban on same-sex marriage violates the Fourteenth Amendment.

Here's the text of the Order:

Upon consideration of submissions relative to the motion to stay mandate, the court denies the motion.

Entered at the direction of Judge Floyd with the concurrence of Judge Gregory. Judge Niemeyer voted to grant the motion.

The 2-1 division of the panel is the same as the division in the opinion on the merits, which we analyzed here.

The saga will undoubtedly continue. 

August 13, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, July 3, 2014

Hobby Lobby Aftermath: Does "Person" in RFRA Include a Guantanamo Bay Detainee?

In an emergency motion for a Temporary Restraining Order filed today in Hassan v. Obama in the District Court for the District of Columbia, the petitioner relies on Monday's controversial decision by the United States Supreme Court in Burwell v. Hobby Lobby.

Petitioner, Imad Abdullah Hassan, a detainee at Guantánamo Bay, invokes the Religious Freedom Restoration Act (RFRA) to prevent the federal government from depriving him of " the right to participate in communal prayers during the Islamic holy month of Ramadan," a tenet of his religious faith. 

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599px-Camp_x-ray_detainees

 

As the motion outlines, the DC Circuit had previously held in Rasul v. Myers, 563 F.3d 527, 532-33 (D.C. Cir. 2009), that the Guantánamo Bay detainees are not protected “person[s]” within the meaning of the RFRA.  The court in Rasul "bypassed the dictionary definition of “person” and instead looked to prior case law prescribing the scope of the word “person” for purposes of the Fourth and Fifth Amendments— which did not, in the Rasul court’s view, apply to nonresident aliens." 

However, the motion argues this is a "dead letter" after the Court's decision in Hobby Lobby which "eviscerates the reasoning in Rasul and makes clear that Petitioner, as a flesh-and-blood human being, is among the 'person[s]' protected by the RFRA."  Indeed, the court in Rasul held that in RFRA Congress merely "intended to incorporate the standard governing free exercise claims that prevailed before the Supreme Court's 1990 decision in Employment Division v. Smith," and that such claims did not include resident noncitizens.  But in Hobby Lobby, the Justice Alito's opinion for the Court explicitly states:

the results would be absurd if RFRA merely restored this Court’s pre-Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith. For example, we are not aware of any pre-Smith case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond RFRA’s protective reach simply because the Court never addressed their rights before Smith?

[Opinion at 33].

Thus, the motion argues that

a nonresident alien Guantánamo Bay detainee, who inarguably has constitutional rights in what is de facto sovereign U.S. territory, see Boumediene v. Bush, 553 U.S. 723 (2008), must also enjoy the protections extended by the RFRA.

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Hobby Lobby leads inexorably to the conclusion that the nonresident alien detainees at Guantánamo Bay are “person[s]” protected by the RFRA. The Dictionary Act definition of “person” includes “individuals.” 1 U.S.C. § 1. The Dictionary Act does not confine “individuals” to U.S. citizens, just as it does not confine “corporations” to U.S. corporations; nor does it confine “individuals” to U.S. residents. The Guantánamo Bay detainees, as flesh-and- blood human beings, are surely “individuals,” and thus they are no less “person[s]” than are the for-profit corporations in Hobby Lobby or the resident noncitizens whom Hobby Lobby gives as an example of persons to whom the RFRA must apply. The fact that the detainees are at Guantánamo Bay changes nothing, for Hobby Lobby makes clear that a “person” whose religious free exercise is burdened under color of law need not be a U.S. citizen or resident in order to enjoy the RFRA’s protections.

The application of Hobby Lobby to "persons" who are detainees at Guantánamo Bay might be an unforeseen consequence of the decision, but the motion makes a convincing argument that it is a logical one grounded in the Court's holding and language.

 

July 3, 2014 in Courts and Judging, Current Affairs, First Amendment, Free Exercise Clause, Recent Cases, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 1, 2014

Federal District Judge Declares Kentucky's Same-Sex Marriage Ban Unconstitutional

In his opinion today in Love v. Beshear, Judge John Heyburn held that the Kentucky provisions prohibiting same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment, but stayed the issuance of an injunction pending a resolution by the Sixth Circuit.

Recall that in February, Judge Heyburn ruled in Bourke v. Beshear 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.

Today's opinion considers those same constitutional and statutory provisions - - - KY. CONST. § 233A; KY. REV. STAT. ANN. §§ 402.005, .020(1)(d) (West 2014) - - - but in the context of a right to marry under Kentucky law.  And, not surprisingly, today's opinion reaches similar conclusions to the earlier case of Bourke v. Beshear.

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Judge Heyburn quickly concludes that Baker v. Nelson, 409 U.S. 810 (1972), in which the Supreme Court dismissed “for want of a substantial federal question” a challenge to a Minnesota Supreme Court ruling concluding that a same-sex couple did not have the right to marry under the federal Due Process or Equal Protection Clauses, is not precedential.  It "is difficult to take seriously the argument that Baker bars Plaintiffs’ challenge," given that the rule for the precedential value of a summary disposition includes the exception "unless doctrinal developments indicate that the Court would rule differently now."  As Judge Heyburn states: "Since 1972, a virtual tidal wave of pertinent doctrinal developments has swept across the constitutional landscape."

In considering these doctrinal developments and the applicable standard of scrutiny under Equal Protection doctrine, Judge Heyburn first considers the right at stake.  He analyzes whether the right to marry is a fundamental right, but concludes that this precise question is one that "neither the Supreme Court nor the Sixth Circuit has answered."  Heyburn declines to engage in "overreaching" on this issue, because the fundamental rights analysis is unnecessary given the analysis regarding sexual orientation classifications.

Judge Heyburn's conclusion on the level of scrutiny to be applied is intermediate scrutiny.  Note that this is a departure from his earlier decision in Bourke to apply rational basis.  Here, his conclusion - - - admittedly not supported by specific Supreme Court or Sixth Circuit precedent - -  is that "homosexual persons constitute a quasi-suspect class based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi- suspect.” He reaches this conclusion by applying four factors:  historical discrimination;  the ability to contribute to society;  immutable defining characteristics; and  political powerlessness.  Thus, the opinion would ordinarily then apply the  intermediate scrutiny standard as articulated by the court: "“substantially related to an important governmental objective."

But Judge Heyburn takes a different path, similar to the one he took in Bourke v. Beshear:

Ultimately, Kentucky’s laws banning same-sex marriage cannot withstand constitutional review regardless of the standard. The Court will demonstrate this by analyzing Plaintiffs’ challenge under rational basis review.

In discussing Kentucky's profferred interests, Judge Heyburn writes that the state's "arguments are not those of serious people."  Moreover, he concludes that the means chosen are not rationally related:

Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses. Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have.

Judge Heyburn's last section of the opinion addresses Kentuckians, but in a much more restrained manner than his earlier opinion in Bourke.  In Love v. Beshear, Judge Heyburn notes

Since this Court’s Bourke opinion [in February 2014], the legal landscape of same-sex marriage rights across the country has evolved considerably, with eight additional federal district courts and one circuit court invalidating state constitutional provisions and statutes that denied same-sex couples the right to marry.

Heyburn cites the Tenth Circuit's opinion in Kitchen v. Herbert, as well as the district court opinions in Baskin v. Bogan (Indiana); Wolf v. Walker (Wisconsin);   Whitewood v. Wolf (Pennsylvania); Geiger v. Kitzhaber (Oregon); Latta v. Otter  (Idaho); De Leon v. Perry (Texas);  DeBoer v. Snyder (Michigan); and  Bostic v. Rainey  (Virgina).

He adds that with "this opinion, this Court joins their company."

It remains to be seen, however, whether the Sixth Circuit will also join this increasingly large assembly.

July 1, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Friday, June 27, 2014

Seventh Circuit Grants Stay of Indiana Same-Sex Marriage Order

In an order this evening, a Seventh Circuit panel - - - Judges Posner, Williams, and Hamilton - - -has granted the emergency motion for stay pending appeal and issued a stay in Baskin v. Bogan. 

As we discussed on Wednesday, United States District Judge Richard Young in Baskin v. Bogan permanently enjoined Indiana officials from enforcing its requirement that marriage requires a female and a male, and its ban on the recognition of same sex marriages legally valid in other states.

June 27, 2014 in Courts and Judging, Current Affairs, Family, Fourteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 18, 2014

Trademark Trial and Appeal Board Cancels Trademark Registration of Football Team as Disparaging


In an extensive opinion today in Blackhorse v. Pro-Football, Inc., Cancellation No. 92046185, a divided Trademark Trial and Appeal Board canceled the trademark of the term "redskins" as violative of  section 2(a), 15 U.S.C. § 1052(a), prohibiting registration of marks that may disparage persons or bring them into contempt or disrepute. 

The majority opinion relied upon dictionary definitions, expert opinions, and surveys to conclude that the term is disparaging - - - and was so at the time the trademark was approved.  The majority rejected the laches defense in part because "there is an overriding public interest in removing from the register marks that are disparaging to a segment of the population beyond the individual petitioners."

 

Judge Bergsman's dissenting opinion disagreed with the

majority’s decision to grant the petition on the claim of disparagement because the dictionary evidence relied upon by the majority is inconclusive and there is no reliable evidence to corroborate the membership of National Council of American Indians.

To be clear, this case is not about the controversy, currently playing out in the media, over whether the term “redskins,” as the name of Washington’s professional football team, is disparaging to Native Americans today. The provisions of the statute under which the Board must decide this case – §§ 2(a) and 14(3) of the Trademark Act, 15 U.S.C. §§ 1052(a) and 1064(3) – require us to answer a much narrower, legal question: whether the evidence made of record in this case establishes that the term “redskins” was disparaging to a substantial composite of Native Americans at the time each of the challenged registrations issued.

Neither the majority or dissenting opinion - - - both of which are lengthy - - - engage with the possible First Amendment free speech issues or with the possible Equal Protection issues; this is decidely a case interpreting a statutory provision regarding trademark. 

Yet the constitutional contours of speech and equality are evident in both opinions, just as constitutionalism has been implicated in the controversies surrounding the use of the term.  Thus, while a "trademark case," Blackhorse v. Pro-Football, Inc. is worth consideration by constitutional students and scholars.   And its comparison to the "dykes on bikes" trademark case, which I've discussed here, is also worth consideration by those interested in constitutionalism, democracy, and language.

 

June 18, 2014 in Cases and Case Materials, Current Affairs, Equal Protection, Fifth Amendment, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, June 12, 2014

Seattle's Minimum Wage Challenged in Federal District Court

Seattle - - - a "progressive and expensive city" - - - "struck a blow against rising income inequality" by raising its municipal minimum wage to $15 per hour earlier this month, as Maria La Ganga reported in the LA Times. Seattle Ordinance 12449 becomes effective in 2015, with a phase-in schedule of pay rates dependent on type of employer.   But it has already been challenged as unconstitutional.

The complaint in International Franchise Association, Inc. v. City of Seattle challenges the ordinance on a variety of constitutional grounds: (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment and state constitution, the state constitutional privileges or immunities provision, preemption under the Lanham Act (trademarks), the contract clauses of the federal and state constitutions, and the First Amendment. 

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skyline of Seattle via

A central issue in this complaint is the Ordinance's definitions of schedule 1 and schedule 2 employers as the definitions relate to franchises.  As paragraph 50 provides:

The Ordinance provides that, for purposes of determining whether an employer is a Schedule 1 or Schedule 2 employer, “separate entities that form an integrated enterprise shall be considered a single employer ... where a separate entity controls the operation of another entity,” but this test applies only to a “non-franchisee employer.” Under the Ordinance, if a small franchisee is associated with a franchise network that employs more than 500 workers, the small franchisee is deemed a Schedule 1 Employer even if it is not part of an “integrated enterprise” as so defined.

Filed by Bancroft LLC and signed by Paul Clement, the pleading contains various arguments detailing why such a distinction is unconstitutional, largely revolving around the competitive disadvantage the ordinance will place on franchised and parent businesses by requiring higher wages.  

LawProf David Ziff of University of Washington School of Law in Seattle has some helpful discussions of the complaint on his blog, including an overview and a specific discussion of the "classes of corporations" argument under the state constitution's privileges or immunities clause.

Certainly this is litigation to watch.  And certainly cities across the United States that are considering similar measures will be looking closely.  Cities are often rightly concerned with state constitutional powers of "home rule" allowing municpalities to vary from the state mandated wage; for example,  the courts declared the 1964 attempted minimum wage raise from 1.25 to 1.50 in NYC to be beyond the powers of the city. But the Seattle challenge raises federal constitutional issues that are necessarily obvious.

June 12, 2014 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, Federalism, Privileges and Immunities, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, June 5, 2014

United States Supreme Court Denies Stay of Oregon Same-Sex Marriage Ruling

Without dissent or opinion, the United States Supreme Court denied the application of stay in National Organization for Marriage v. Geiger.  The application was made to Justice Kennedy (as Circuit Justice) and "by him referred to the Court." 

The National Organization for Marriage (NOM) was not a party to the orginal case, Geiger v. Kitzhaber in which Oregon District Judge Michael McShane declared unconstitutional the state’s same-sex marriage prohibition in Article 15 of the state constitution, as we discussed here.

Recall that Oregon conceded that the state law was unconstitutional; hence the application by NOM.  However, while Judge McShane did not analyze defendant standing or Article III "case and controversy" in Geiger, NOM's application for a stay in Geiger raises even more serious Article III issues after Hollingsworth v. Perry.

June 5, 2014 in Courts and Judging, Current Affairs, Family, Federalism, Fourteenth Amendment, Sexual Orientation, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 20, 2014

Pennsylvania District Judge Declares State's Same-Sex Marriage Ban Unconstitutional

In his opinion in Whitewood v. Wolf, Judge John E. Jones, III, announced that Pennsylvania would "join the twelve federal district courts across the country" that had declared their respective same-sex marriage bans unconstitutional.

The judge considered both a Due Process and Equal Protection challenge to Pennsylvania's statutory ban on same-sex marriage and found both had merit.

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1827 Finley map of Pennsylvania

Regarding due process, he concluded that

 the fundamental right to marry as protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution encompasses the right to marry a person of one’s own sex. . . . that this fundamental right is infringed upon by 23 Pa. C.S. § 1102, which defines marriage as between one man and one woman and thus precludes same-sex marriage. Accordingly, 23 Pa. C.S. § 1102 is unconstitutional.

Judge Jones' equal protection analysis first considered the proper level of scrutiny for sexual orientation and after extensive discussion of the factors (a modified Carolene Products analysis), he concluded that sexual orientation classifications are quasi-suspect and deserve heightened scrutiny. The application of this standard is relatively brief:

Significantly, Defendants claim only that the objectives are “legitimate,” advancing no argument that the interests are “important” state interests as required to withstand heightened scrutiny. Also, Defendants do not explain the relationship between the classification and the governmental objectives served; much less do they provide an exceedingly persuasive justification. In essence, Defendants argue within the framework of deferential review and go no further.  Indeed, it is unsurprising that Defendants muster no argument engaging the strictures of heightened scrutiny, as we, too, are unable to fathom an ingenuous defense saving the Marriage Laws from being invalidated under this more-searching standard.

Resembling many of the other opinions, including yesterday's opinion from an Oregon federal judge, Judge Jones' 39 page opinion acknowledges its part in a growing trend, cites all the other federal cases, includes a reference to Scalia's dissenting opinion in Windsor to support its rationale, and includes an acknowledgement of the divisiveness of the issue but invokes a historical perspective (represented by Plessy v. Ferguson and Brown v. Board of Education) in its relatively brief conclusion. 

It differs from other similar opinions in explicitly resting its Equal Protection analysis in intermediate scrutiny befitting a quasi-suspect class.

But the doctrinal differences are less noteworthy than the tide of federal judges (and some state judges) striking down their state laws banning same-sex marriage.

May 20, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fundamental Rights, Opinion Analysis, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Civil Liberties & Security Scholarship Award Nominations

Nominations/Applications due July 1, 2014

for the IIT Chicago-Kent College of Law/Roy C. Palmer Civil Liberties Prize

The prize honors a work of scholarship - - - book or article - - - that explores the tension between civil liberties and national security in contemporary American society.

"The $10,000 prize is designed to encourage and reward public debate among scholars on current issues affecting the rights of individuals and the responsibilities of governments throughout the world."

Details here.

Last year's prize-winner was The Counterinsurgent's Constitution: Law in the Age of Small Wars (Oxford University Press 2012) by Ganesh Sitaraman.

9780199930319

 

May 20, 2014 in Current Affairs, Scholarship | Permalink | Comments (0) | TrackBack (0)