Tuesday, July 29, 2014
Divided Fifth Circuit Upholds Preliminary Injunction Against Mississippi's Restrictive Abortion Law HB 1390
A panel of the Fifth Circuit in its opinion today in Jackson Women's Health Organization v. Currier upheld the district judge's injunction against the enforcement of a restrictive abortion statute known as Mississippi HB 1390.
The statute required physicians performing abortions to have admitting privileges to a nearby hospital. As the court noted, a similar provision in Texas (HB 2) was recently upheld by the Fifth Circuit in Planned Parenthood of Texas Surgical Providers v. Abbott. As to the rational basis of such a law, the panel stated it was "bound" by Abbott as precedent to accept that the Mississippi statute survives a constitutional challenge.
Regarding undue burden, however, the panel majority, in an opinion by Judge E. Grady Jolly (who interestingly hails from Mississippi) and joined by Judge Stephen Higginson, the effects of HB 1390 were relevant in this as-applied challenge. In assessing the undue burden, the court found it highly relevant that “if enforced, the admitting privileges requirement would likely require JWHO, the only currently licensed abortion facility in Mississippi, to lose its license.” The panel rejected the State's attempt to "walk back" this statement - - - which is actually a quote from the State's opening brief - - - as "too little, too late." Additionally, the majority found it important that the hospitals had rejected the physicians' applications for admitting privileges based on the fact that the physicians performed abortions.
The central - - - and exceedingly interesting - - - question of the undue burden analysis is the relevance of the clinic's status as the only abortion clinic remaining in Mississippi. The State argued that there is no undue burden because women could travel to another state and many of these distances would not be unduly burdensome in and of themselves. Recall that in Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992) the plurality opinion rejected the contention that traveling long distances constituted an undue burden. But, as Judge Jolly notes, there was no suggestion that women should have to go to neighboring states in Casey or in any other opinion, and there is at least one circuit court opinion that finds it "dispositive" that women had to leave the state to exercise their constitutional right.
Additionally - - - and this is the interesting part - - - the court relies upon State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) in the United States Supreme Court rejected Missouri's argument that its failure to admit an African-American man to its law school was essentially cured by its offer of a tuition stipend to allow Mr. Gaines to attend law school in another state. Here's the passage from Gaines that Judge Jolly finds worthy of quoting at length:
[T]he obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. . . . That obligation is imposed by the Constitution upon the States severally as governmental entities, —each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system.
Id. at 350. Judge Jolly admits that Gaines can be distinguished, but finds Gaines nevertheless determinative: " a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights."
In a lengthy and somewhat vehement dissent - - - complete with quotations from Albert Camus - - - Senior Judge Emilio Garza finds many things to criticize in the majority's opinion, including the majority's failure to recognize there is not sufficient state action for a constitutional claim (it is the hospitals denying admitting privileges rather than the statute that are the cause); the majority's failure to honor the distinction between equal protection (as in Gaines) and due process (in the abortion context); the majority's belief that there is relevance to crossing state lines (given the constitutional right to travel across state lines articulated in Saenz v. Roe); the majority's failure to recognize that Casey is nothing more than a "verbal shell game" (quoting Justice Scalia's dissent in Casey); the majority's recognition of the "liberty" interest (quotes in original) in the Due Process Clause; and the majority's participation in "aggrandizement of judicial power."
But the central issue of federalism including not only states' rights but states' responsibilities raised by this opinion and litigation is one that merits close consideration.
July 29, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, July 28, 2014
Affirming the federal district judge's decision in February, a panel of the Fourth Circuit in a divided opinion has held in Bostic v. Schaefer that Virginia's same-sex marriage prohibitions are unconstitutional.
violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples’ lawful out-of-state marriages.
At various times, the court blends Due Process and Equal Protection analysis and precedent, but both spring from its conclusion that "marriage" is a fundamental right and that "marriage" includes same-sex marriage. After discussing Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley, the court notes:
These cases do not define the rights in question as “the right to interracial marriage,” “the right of people owing child support to marry,” and “the right of prison inmates to marry.” Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right. The Supreme Court’s unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of “freedom of choice,” Zablocki, 434 U.S. at 387, that “resides with the individual,” Loving, 388 U.S. at 12. If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed.
The court's use of "couplings" implicitly addresses a portion of the oft-called slippery slope argument that is raised by Judge Paul Niemeyer in his dissent: what would prevent this rationale from extending to polygamy? The dissent also invokes incest, accusing the majority of "dictionary jurisprudence" when it (re)defines marriage to include same-sex marriage. But of course, the definitional conundrum plagues the dissent as well, when it argues that certain qualities are "foundational" to marriage and other qualities are "irrelevant." For the dissent, this is the "biological link between procreation and marriage," a link that does exist in the polygamous and incestuous marriages the dissent disapproves.
For the majority, after finding marriage a fundamental right deserving of strict scrutiny, the five governmental interests argued as supporting the marriage laws not surprisingly fail to pass constitutional muster:
- (1) Virginia’s federalism-based interest in maintaining control over the definition of marriage within its borders,
- (2) the history and tradition of opposite-sex marriage,
- (3) protecting the institution of marriage,
- (4) encouraging responsible procreation, and
- (5) promoting the optimal childrearing environment.
More surprising is that although these interests are raised by the parties the court calls the "Proponents" of the Virginia marriage laws, there is little in the court's opinion that analyzes their standing to appeal. The court does analyze the standing of the plaintiffs to sue the defendants George Schaefer III (in his official capacity as Clerk of Court for Norfolk Circuit Court) and Janet Rainey (in her official capacity as State Registrar of Vital Records). And since these parties were indeed defendants, there may be little need for an extensive analysis of appellate standing as was necessary in the same-sex marriage cases decided by the United States Supreme Court in June 2013. Nevertheless, recall that the (new) Virginia Attorney General had decided during the district court litigation that the Virginia laws were unconstitutional and filed a notice of change of position; however the laws continued to be enforced.
The Fourth Circuit thus joins the Tenth Circuit in holding that a state's same-sex marriage ban violates the Fourteenth Amendment. While these circuit court opinions are divided, the dozen or so federal district judges who have considered the issue have been unanimous in reaching the same conclusion.
July 28, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, State Constitutional Law, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Thursday, July 3, 2014
In an exceedingly brief per curiam opinion in Keating v. University of South Dakota, an Eighth Circuit panel reversed the conclusion of a district judge that the university's "civility code" was "impermissibly vague, in violation of the Due Process Clause of the Fourteenth Amendment.
The university provision at issue provided:
Faculty members are responsible for discharging their instructional, scholarly and service duties civilly, constructively and in an informed manner. They must treat their colleagues, staff, students and visitors with respect, and they must comport themselves at all times, even when expressing disagreement or when engaging in pedagogical exercises, in ways that will preserve and strengthen the willingness to cooperate and to give or to accept instruction, guidance or assistance.
The plaintiff, a tenure-track physics professor, did not have his employment contract renewed because of a strained relationship with his supervisors, including becoming "quite angry" at a meeting, being the subject of a sexual harassment claim, and sending an email accusing his immediate supervisor of being a lying, back-stabbing sneak.
The panel held that although the "policy employs broad language, that alone does not necessarily prevent an ordinary person from recognizing that certain conduct will result in discharge or discipline." Instead,
the civility clause articulates a more comprehensive set of expectations that, taken together, provides employees meaningful notice of the conduct required by the policy. The outer contours of the civility clause perhaps are imprecise, but many instances of faculty misconduct would fall clearly within the clause’s proscriptions, thus precluding the conclusion that the policy is facially unconstitutional.
Moreover, the panel found as applied to Keating's conduct, the civility clause was not impermissibly vague.
The use of "civilty clauses" continues to be a contested issue on due process grounds as well as First Amendment grounds. Here, the Eighth Circuit provides a definitive stamp of approval to such a policy.
Wednesday, June 25, 2014
In his decision today in Baskin v. Bogan, United States District Judge Richard Young 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, Indiana Code Section 31-11-1-1 (subsections a & b).
After resolving problems of the proper defendant and quickly disposing of the argument that Baker v. Nelson's summary finding by the Supreme Court in 1972 has meaningful precedential value, Judge Young's opinion proceeds along three separate tracks.
First, Judge Young finds that marriage is a fundamental right and therefore the statutory ban on same-sex marriage should be subject to strict scrutiny. Judge Young concluded that the scope of the fundamental right is not limited, quoting Judge Black's opinion in Henry v. Himes that the United States Supreme Court has not limited this fundamental right in its pertinent cases; the Court "consistently describes a general ‘fundamental right to marry’ rather than ‘the right to interracial marriage,’ ‘the right to inmate marriage,’ or ‘the right of people owing child support to marry.’" Applying strict scrutiny, Judge Young articulates the state's proffered interest "in conferring the special benefit of civil marriage to only one man and one woman is justified by its interest in encouraging the couple to stay together for the sake of any unintended children that their sexual union may create," but declines to asess it and assumes that it is "sufficiently important interest." However, Judge Young finds that the state has not demonstrated that the statute is “closely tailored” to that interest, but instead is "both over- and under-inclusive."
Second, Judge Young analyzes the statute on the basis of equal protection, rejecting the argument that the statute makes a gender classification and concluding that it makes a sexual orientation classification. While Judge Young contends that while it might be time to "reconsider" whether sexual orientation classifications should be analyzed under rational basis scrutiny, the "court will leave that decision to the Seventh Circuit, where this case will surely be headed." Applying rational basis scrutiny, however, Judge Young concludes that there is no rational relationship to the interests proffered by the state.
Third, Judge Young independently analyzes subsection b of the statute, applying to recognition. The judge notes that the "parties agree that out-of-state, same-sex marriages are treated differently than out-of-state, opposite-sex marriages," and thus "the question is whether that difference violates the Equal Protection Clause." Again, applying rational basis scrutiny, Judge Young concludes:
Defendants proffer that the state refuses to recognize same-sex marriages because it conflicts with the State’s philosophy of marriage – that is that marriage is to ameliorate the consequences of unintended children. Recognizing the valid same-sex marriages performed in other states, however, has no link whatsoever to whether opposite-sex couples have children or stay together for those children. Thus, there is no rational basis to refuse recognition and void out-of-state, same-sex marriages.
Judge Young's opinion is economical (at 36 pages), well-structured, and well-supported with relevant citations. Judge Young did not issue a stay of his opinion. One assumes that such a decision may be sought from the Seventh Circuit.
June 25, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Full Faith and Credit Clause, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
In a divided decision, the Tenth Circuit opinion in Kitchen v. Herbert held that the
Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that [Utah's state constitution's] Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny.
Affirming the district court's decision as well as its analysis, the Tenth Circuit panel majority, authored by Judge Carlos Lucero, and joined by Judge Jerome Holmes, applied strict scrutiny because it found that the "right to marry is a fundamental liberty."
In applying strict scrutiny, the panel majority assumed that three of the four interests advanced by the government - - - (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction” - - - were compelling. However, the court found that the means chosen - - - the prohibition of same-sex marriage - - - did not sufficiently serve these interests. Instead, each of the
justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples.
The court noted that Justice Scalia, dissenting in Windsor, and numerous district judges, reached a similiar conclusion. The majority observed that the lack of narrow tailoring is "often revealed" by underinclusiveness, finding it important that Utah did not ban nonprocreative marriages.
The court's analysis of each of the three rationales is substantial and erudite, firmly rooted in precedent and well-reasoned.
As to the fourth and final interest asserted by the government - - -“accommodating religious freedom and reducing the potential for civic strife,” - - - the court reasoned that "the Supreme Court has repeatedly held that public opposition cannot provide cover for a violation of fundamental rights" and emphasized that its "decision relates solely to civil marriage."
Dissenting from the more than 60 page majority opinion, Judge Paul Kelly wrote more than 40 pages in disagreement (although he did agree with the majority on the standing issue, making the opinion concurring in part). Not surprisingly, he disagreed with the level of scrutiny to be applied; he concluded that there was no fundamental right at issue and would have applied rational basis scrutiny. Also not surprisingly, he would have concluded that Utah's ban on same-sex marriage satisfied this most easily satisfied level of scrutiny given the state's interests in (1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area.
More surprisingly, Judge Kelly found that the Supreme Court's per curiam dismissal in 1972 of Baker v. Nelson, for "want of a substantial federal question" controlling ; it "should foreclose the Plaintiffs’ claims, at least in this court," notwithstanding the Court's decision invalidating the federal Defense of Marriage Act's ban on recognition of same-sex marriage last term in Windsor.
If - - and most probably when - - - the United States Supreme Court does consider the issue of state laws banning same-sex marriage, Baker v. Nelson will be irrelevant and the Court will directly grapple with issues if fundamental constitutional rights and levels of scrutiny under the Fourteenth Amendment's due process and equal protection doctrines.
Given that the Tenth Circuit stayed its decision pending the disposition of any subsequently filed petition for certiorari it may be that both sides seek review from the United States Supreme Court,
June 25, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)
Thursday, June 19, 2014
In its opinion in Desertain v. City of Los Angeles, the Ninth Circuit held that a provision of the Los Angeles municipal code prohibiting using automobiles as living quarters was unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment.
Section 85.02 of the municipal code, entitled "Use of streets and public parking lots for habitation" provides:
No person shall use a vehicle parked or standing upon any City street, or upon any parking lot owned by the City of Los Angeles and under the control of the City of Los Angeles or under control of the Los Angeles County Department of Beaches and Harbors, as living quarters either overnight, day-by-day, or otherwise.
In finding the provision unconstitutionally vague, the court's opinion authored by Judge Harry Pregerson considered whether it gave adequate notice of the acts prohibited as required by City of Chicago v. Morales, 527 U.S. 41 (1999), and focused on the four plaintiffs and their arrests:
Plaintiffs are left guessing as to what behavior would subject them to citation and arrest by an officer. Is it impermissible to eat food in a vehicle? Is it illegal to keep a sleeping bag? Canned food? Books? What about speaking on a cell phone? Or staying in the car to get out of the rain? These are all actions Plaintiffs were taking when arrested for violation of the ordinance, all of which are otherwise perfectly legal. And despite Plaintiffs’ repeated attempts to comply with Section 85.02, there appears to be nothing they can do to avoid violating the statute short of discarding all of their possessions or their vehicles, or leaving Los Angeles entirely. All in all, this broad and cryptic statute criminalizes innocent behavior, making it impossible for citizens to know how to keep their conduct within the pale.
As the court noted, the ordinance was "amorphous" enough to include "any vacationer who drives through Los Angeles in an RV."
However, the seeming reality that vacationers in RVs were not arrested led the court to its second reason for concluding the ordinance was unconstitutionally vague. The court found that the ordinance "promotes arbitrary enforcement that targets the homeless," as is inconsistent with Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). The ordinance is "broad enough to cover any driver in Los Angeles who eats food or transports personal belongings in his or her vehicle," yet "it appears to be applied only to the homeless." While the city might certainly have relied upon a limiting construction, its memo attempting to do so was "disfavored" by the law enforcement head of the homelessness task force and police officers did not follow it.In the first pages of the opinion, the court discussed four of the individual plaintiffs in detail. In its final paragraph, the court summarized their plight and its rationale:
For many homeless persons, their automobile may be their last major possession — the means by which they can look for work and seek social services. The City of Los Angeles has many options at its disposal to alleviate the plight and suffering of its homeless citizens. Selectively preventing the homeless and the poor from using their vehicles for activities many other citizens also conduct in their cars should not be one of those options.
Wednesday, June 11, 2014
The D.C. Circuit this week rejected a variety of claims by Guantanamo detainees for mistreatment by government officials and guards even after they had been cleared for release by the Combat Status Review Tribunal. The court also rejected the plaintiffs' request to remand the case to amend their complaint.
The case, Allaithi v. Rumsfeld, involved detainee claims of "forced grooming, solitary confinement, sleep deprivation, forced medication, transport in 'shackles and chains, blackened goggles, and ear coverings,' and the disruption of . . . religious practices," even after some of the plaintiffs were cleared for release by the CSRT. The plaintiffs brought claims against government officials and Guantanamo guards under the Alien Tort Statute, the Geneva Convention, the Vienna Convention on Consular Relations, the First Amendment, the Due Process Clause, and the Religious Freedom Restoration Act.
As to the ATS, the court held that the defendants were acting within the scope of their employment, which, under the Westfall Act, transforms their ATS claim into a Federal Tort Claims Act claim against the government. But the plaintiffs didn't pursue administrative remedies under the FTCA, so their case was dismissed.
As to the Vienna Convention, the court said that the Convention confers a private right of action.
As to the other, Bivens claims, the court held, citing its second Rasul ruling, that the defendants enjoyed qualified immunity, or, alternatively, that the case raised special factors counseling against a Bivens remedy.
June 11, 2014 in Cases and Case Materials, Due Process (Substantive), First Amendment, Foreign Affairs, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)
Friday, June 6, 2014
Joining the federal judges who have declared unconstitutional their respective state laws banning same-sex marriage, Judge Barbara Crabb issued an 88 page opinion and order in Wolf v. Walker ruling that Art. XIII, § 13 of the Wisconsin Constitution prohibiting same-sex marriage "violates plaintiffs’ fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the United States Constitution" and that "any Wisconsin statutory provisions, including those in Wisconsin Statutes chapter 765, that limit marriages to a 'husband' and a 'wife,' are unconstitutional as applied to same-sex couples."
While Judge Crabb does not issue a stay, the opinion is not effective immediately. Instead, the plaintiffs have until June 16 to submit a proposed injunction, the defendants have a week to respond, and the Judge will consider the stay at that time - - - adding a specific allowance of the parties to address the application for a stay in light of the United States Supreme Court's refusal to grant a stay - - - just two days ago - - - in Geiger v. Kitzhaber.
Crabb's opinion is a scholarly treatment that seriously engages with seemingly all of the arguments raised by the state, the plaintiffs, and various amici. It echoes other judges who have reached similar results in relying upon Justice Scalia's dissenting opinions to support its conclusions. Judge Crabb also interestingly uses work by Maggie Gallagher, one of the founders of the anti-same-sex marriage group National Organizer for Marriage as a supporting citation for the importance of marriage as "essential to the pursuit of happiness." The range of her citations is impressive and although the opinion certainly has rhetorical flourishes, it is measured and substantive.
Her statement that marriage is a "fundamental right" is more nuanced in the conclusion to the due process analysis in opinion, which concludes:
that Wisconsin’s marriage amendment and the Wisconsin statutes defining marriage as requiring a “husband” and a “wife” significantly interfere with plaintiffs’ right to marry, so the laws must be supported by “sufficiently important state interests” that are “closely tailored to effectuate only those interests,” Zablocki [v. Redhail] 434 U.S. at 388, in order to survive constitutional scrutiny.
Regarding the level of scrutiny under the Equal Protection Clause, Judge Crabb finds that Supreme Court precedent - - - including Windsor - - - is not determinative and that Seventh Circuit precedent is similarly not determinative. The opinion therefore engages in an analysis of the classification under four factors: history of discrimination; ability to contribute to society the same as others; immutability; and political powerlessness. (Interestingly, Judge Crabb does not cite to Carolene Products). She ultimately concludes that heightened scrutiny (intermediate scrutiny) is appropriate, although she does "hedge her bets" a bit, writing that
regardless whether I apply strict scrutiny, intermediate scrutiny or some “more searching” form of rational basis review under the equal protection clause, I conclude that the marriage amendment and related statutes cannot survive constitutional review.
The opinion then seriously considers the by-now familiar asserted interests: tradition, procreation, optimal child-rearing, protecting the institution of marriage, proceeding with caution, and the less-oft explicit interest of "slippery slope." Not surprisingly, she finds none of them support the same-sex marriage ban.
Judge Crabb's opinion acknowledges the opinion's place in the current terrain of post-Windsor decisions. Not only does she address the recent cases, she also considers the social climate, with reference to one of the circuit judges who might well hear the case on appeal:
In light of Windsor and the many decisions that have invalidated restrictions on same-sex marriage since Windsor, it appears that courts are moving toward a consensus that it is time to embrace full legal equality for gay and lesbian citizens. Perhaps it is no coincidence that these decisions are coming at a time when public opinion is moving quickly in the direction of support for same-sex marriage. Compare Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should Decide? 95 Mich. L. Rev. 1578, 1585 (1997) (“Public opinion may change . . . but at present it is too firmly against same-sex marriage for the courts to act.”), with Richard A. Posner, “Homosexual Marriage—Posner,” The Becker-Posner Blog (May 13, 2012) (“[T]he only remaining basis for opposition to homosexual marriage . . . is religious. . . . But whatever the [religious objections are], the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims.”).
This case is most likely going to the Seventh Circuit - - - and it or one of its sister-opinions - - - is most likely headed to the Supreme Court.
Tuesday, May 20, 2014
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.
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.
Friday, May 16, 2014
The Arkansas Supreme Court's Order in Smith v. Wright grants a stay of the injunction against enforcing the ban on same-sex marriages.
Recall that last Friday, Circuit Judge Charles Piazza in Wright v. Arkansas declared unconstitutional Arkansas Act 144 and Arkansas Amendment 83, both of which define marriage as limited to one man and one woman.
Judge Piazza later issued a clarifying order and there have been numerous procedural matters to resolve. Today's order by the Arkansas Supreme Court Justices (pictured below) grants the request for an emergency stay without opinion.
A full appeal will presumably follow.
Tuesday, May 13, 2014
In a 57 page opinion today in Latta v. Otter, federal judge Candy Wagahoff Dale concluded that Idaho's statutory and state constitutional bans on same-sex marriage violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment and issued a permanent injunction. (Judge Candy Dale is the Chief Magistrate Judge of the District of Idaho).
The judge was well aware of joining the trend of recent decisions finding state laws banning same-sex marriage unconstitutional, writing that the principle of judicial protection of "fundamental rights" regardless of majoritarian concerns
resonates today, as 10 federal courts across the country have in recent months reached similar conclusions on the very issues present in this case. Considering many of the same arguments and much of the same law, each of these courts concluded that state laws prohibiting or refusing to recognize same-sex marriage fail to rationally advance legitimate state interests. This judicial consensus was forged from each court’s independent analysis of Supreme Court cases extending from Loving through Romer, Lawrence, and Windsor. The logic of these precedents virtually compels the conclusion that same-sex and opposite-sex couples deserve equal dignity when they seek the benefits and responsibilities of civil marriage. Because Idaho’s Marriage Laws do not withstand any applicable form of constitutional scrutiny, the Court finds they violate the Fourteenth Amendment to the United States Constitution.
The passage includes a footnote citing all the federal cases (but not the state judge in Arkansas just last week or the New Mexico Supreme Court). Judge Dale also includes a quotation from Justice Scalia: "But ‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.” Lawrence, 539 U.S. at 601 (Scalia, J., dissenting)," in support of her conclusion that the constitutional amendment approved by the voters was motivated by animus.
In one unique aspect, Judge Dale specifically considered SmithKline Beecham Corporation (GSK) v. Abbott Laboratories, a unanimous panel of the Ninth Circuit in January that extended the equal protection rule and analysis of Batson v. Kentucky (1986) regarding juror exclusions to those based on sexual orientation. Judge Dale specifically found that the "SmithKline’s examination of Windsor is authoritative and binding upon this Court" and that:
In this Court’s view, SmithKline establishes a broadly applicable equal protection principle that is not limited to the jury selection context.
On the whole, although Judge Dale repeatedly finds marriage to be a fundamental right, the opinion ultimately contends that the same-sex marriage bans fail to satisfy even the lowest rational basis review.
Judge Dale did not issue a stay, but given the effective date of the injunction as Friday, May 16, there are sure to be stay requests.
Friday, May 9, 2014
In an opinion issued late today in Wright v. Arkansas, Circuit Judge Charles Piazza declared unconstitutional Arkansas Act 144 and Arkansas Amendment 83, both of which define marriage as limited to one man and one woman. The decision rests on the Fourteenth Amendment's Equal Protection and Due Process Clauses, as well as on ARK. Const., art 2 §2, with equality and liberty provisions.
The relatively brief opinion - - - 13 pages single spaced - - - tracks familiar ground, highlighting Windsor v. United States and the post-Windsor cases, emphasizing Kitchen v. Herbert and Bishop v. United States. Judge Piazza also points to Justice Scalia's dissenting language as other cases have done; Judge Piazza bolsters his finding that "tradition" is not a legitimate state interest by stating:
And, as Justice Scalia has noted in dissent, " 'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples." Lawrence, 539 U.S. at 601 (Scalia, J., dissenting).
Judge Piazza also confronts possible charges of judicial activism with a reference to Dred Scott v. Sandford (1856), including an extensive quote from Justice Taney's opinion, before moving onto Loving v. Virginia and Griswold v. Connecticut. He also relies on Arkansas' precedent:
The Arkansas Supreme Court has previously addressed the right to privacy as it involves same-sex couples. ln Jegley v. Picado, the Arkansas Supreme Court struck down the sodomy statute as unconstitutional in violating Article 2, §2 and the right to privacy. 349 Ark. 600, 638 (2002). Justice Brown, in Arkansas Dep't of Human Services v. Cole, noted "that Arkansas has a rich and compelling tradition of protecting individual privacy and that a fundamental right to privacy is implicit in the Arkansas Constitution." 2011 Ark. 145, 380 S.W. 3d. 429, 435 (2011) (citing Jegley, id. at 632). The Arkansas Supreme Court applied a heightened scrutiny and struck down as unconstitutional an initiated act that prohibited unmarried opposite-sex and same-sex couples from adopting children. Id at 442. The exclusion of same-sex couples from marriage for no rational basis violates the fundamental right to privacy and equal protection as described in Jegley and Cole, supra. The difference between opposite-sex and same-sex families is within the privacy of their homes.
The judge did not stay the opinion; it may be that some attorneys for the state of Arkansas will have a very busy weekend.
Wednesday, May 7, 2014
New Hampshire Supreme Court: Vanity License Plate "Not Offensive to Good Taste" Requirement Violates First Amendment
Relying on its state constitution, the New Hampshire Supreme Court's opinion today in Montenegro v. New Hampshire DMV held that the regulation prohibiting vanity license plates that are "offensive to good taste" was unconstitutional.
David Montenegro, who represented himself, appealed an order denying him a vanity registration plate reading "COPSLIE" and argued that the "offensive to good taste" exclusion in the regulation violated his speech rights under Part I, Article 22, New Hampshire Constitution as well as the First Amendment.
The unanimous court considered the relationship between vagueness and overbreadth, which it contended may certainly overlap, but ultimately settled on vagueness. The court ultimately concluding that
Because the "offensive to good taste" standard is not susceptible of objective definition, the restriction grants DMV officials the power to deny a proposed vanity registration plate because it offends particular officials’ subjective idea of what is “good taste.”
This vague standard thus violated the New Hampshire guarantee of free speech according the supreme court.
From the news report, Montenegro seems as "colorful" as his predecessor George Maynard, whose challenge to New Hampshire's "live free or die" motto on its license plates was resolved by the United States Supreme Court in Wooley v. Maynard (1977). And this case will take its place in developing "license plate jurisprudence": the "infidel" license plate denial; the unsucessful challenge to the Native American image on the Oklahoma license plate; and the unconstitutional "choose life" license plate offering.
Tuesday, April 15, 2014
In its opinion National Legal Services v. India, the Supreme Court of India has recognized the constitutional rights of transgender persons, including the right not to be denominated as either "male" or "female."
The opinion by K.S. Radhakrishnan begins with an invocation of the "trauma, agony and pain which the members of Transgender community undergo" but rather quickly also invokes the cultural roots and importance of the community: "TG Community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong historical presence in our country in the Hindu mythology and other religious texts."
The judgment rests on an interpretation of several provisions of the Constitution of India, including Article 14 (equality before law); Article 15 (prohibition of discrimination on the basis of various grounds, including sex); Article 16 (equality of opportunity in public employment, including sex); Article 19 (including freedom of expression); and Article 21 (protection of life and personal liberty). The judgment engaged in some originalist reasoning that broadly interpreted "sex" to include sex-stereotyping:
Constitution makers, it can be gathered, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders. Both gender and biological attributes constitute distinct components of sex. Biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes include one’s self image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of ‘sex’ under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female.
Given this interpretation, the Court not suprisingly ruled
We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.
The Court has some interesting discussions of dress and grooming as an aspect of gender which included references to US cases and is further discussed here.
The Court also specifically disavowed any relationship between its present judgment in National Legal Services v. India and the controversial opinion Koushal v. NAZ Foundation decided in December in which the Court - - - or as the Court states here "A Division Bench of this Court" reversed the 2009 decision of the Delhi High Court that §377 of the Indian Penal Code was unconstitutional under the India Constitution and upheld India's sodomy law as constitutional:
we express no opinion on it [Kousal] since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation.
In a separate judgment, A.K. Sikiri did not mention the sodomy decision in Koushal v. Naz Foundation, but the judgment's expansive rhetoric could be read as an implicit disagreement with that decision as well as serving as a further butressing of today's judgment. The concurring opinion elaborated on the importance of TG persons and communities to India's culture. It referenced Immanuel Kant, John Rawls, Amartya Sen as providing the "jurisprudential basis for doing justice to the Vulnerable Groups which definitely include TGs." It explicitly stated the "dynamic" and "living character" of the Constitution and its interpretation. It considered judicial review in the context of democracy (including, implicitly, "sexual democracy") and decidedly opined that it is the role of the judiciary to "ensure access to justice to the marginalized section of the society," and that undoubtedly "TGs belong to the unprivileged class which is a marginalized section."
The judgment not only requires the government to recognize a "third gender" and to grant "legal recognition of their gender identity such as male, female or as third gender," but also directs the government to take positive steps in education, health provisions, and "seriously address" various problems.
April 15, 2014 in Comparative Constitutionalism, Courts and Judging, Due Process (Substantive), Equal Protection, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)
Monday, April 14, 2014
In the widely anticipated opinion in Henry v. Himes, Judge Timothy Black has ruled that Ohio Const. Art. XV, § 11 and Ohio Rev. Code § 3101.01(C) denying legal recognition to the marriages of same-sex couples validly entered in other jurisdictions violates the Fourteenth Amendment.
Recall that Judge Black previously issued an opinion in Obergefell v. Kasich with a similar conclusion, although that opinion was limited to the particular plaintiffs. Judge Black's preliminary injunction ruling in Obergefell was the first post-Windsor decision on same sex marriage, and interestingly used some of Justice Scalia's dissenting language to support his reasoning.
While Obergefell involved a person who was dying, the plaintiffs in Henry are same-sex couples expecting children or with children. The four plaintiff couples, who entered into valid marriages in other jurisdictions, seek to have the names of both parents recorded on their children’s Ohio birth certificates and a declaration that Ohio’s refusal to recognize valid same-sex marriages is unconstitutional. Judge Black relied heavily on his previous rationale in Obergefell, and again found that while marriage is a fundamental right, the Supreme Court has not explicitly recognized it as such, and "the balancing approach of intermediate scrutiny is appropriate in this similar instance where Ohio is intruding into – and in fact erasing – Plaintiffs’ already- established marital and family relations." Again, Judge Black footnotes Professor Steve Sanders work on the liberty interest in having one's marriage recognized.
In the equal protection analysis, Judge Black does advance a distinct rationale for "heightened scrutiny" given that the children's birth certificates are involved. He writes that the "Supreme Court has long held that disparate treatment of children based on disapproval of their parents’ status or conduct violates the Equal Protection Clause," citing Plyler v. Doe, 457 U.S. 202 (1982). But, as in Obergefell, he also explicitly found that even if rational basis were applied, the Ohio provisions failed to satisfy it.
On the last page of Judge Black's opinion is the text of a song, "Happy Adoption Day" (1992). For some, this will seem appropriate and celebratory. For others, this will seem indecorous and treacly. Judge Black's previous statements have displeased at least one state representative - - - who has introduced a resolution in the Ohio legislature calling for the House of Representatives of Congress to initiate impeachment proceedings.
Thursday, March 27, 2014
A panel of the Fifth Circuit upheld the restrictive abortion law of Texas in its opinion in Planned Parenthood of Texas Surgical Providers v. Abbott.
Authored by controversial conservative Judge Edith Jones, the unanimous panel opinion upholds positions of equally controversial Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis. The district judge's decision had enjoined the "admitting provisions of HB 2 as unconstitutional:
A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services
The Fifth Circuit quickly stayed the injunction. In today's panel opinion, Judge Jones wrote that the the district judge's opinion "applied the wrong legal standards under rational basis review and erred in finding that the admitting–privileges requirement amounts to an undue burden for a 'large fraction' of the women that it affects."
As to rational basis, Judge Jones highlighted the highly deferential standard, its place in a democracy, its practicality (if the legislature doesn't think a law is working, it can change it), and its application to HB2:
Viewed from the proper perspective, the State’s articulation of rational legislative objectives, which was backed by evidence placed before the state legislature, easily supplied a connection between the admitting–privileges rule and the desirable protection of abortion patients’ health.
As to the undue burden, Judge Jones noted that the Supreme Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey,
counsels against striking down a statute solely because women may have to travel long distances to obtain abortions. The record before us does not indicate that the admitting–privileges requirement imposes an undue burden by virtue of the potential increase in travel distance in the Rio Grande Valley.
The narrow exception of the Fifth Circuit's reversal if that the admitting privileges requirement "may not be enforced against abortion providers who timely applied for admitting privileges under the statute but are awaiting a response from the hospital."
Monday, March 24, 2014
Can a government criminalize the recording of conversations absent consent without violating the First Amendment, or perhaps the Due Process Clause?
Both cases relied upon ACLU v. Alvarez, in which the Seventh Circuit enjoined the statute from being applied to a Chicago police accountability program.
In Clark, the Illinois Supreme Court held that 720 ILCS 5/14-2(a)(1)(A), the eavesdropping statute, violated the First Amendment's overbreadth doctrine "because a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep." The court recognized the ubiquity of smartphones and other recording devices.
Importantly for the court, the statute criminalized a "whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private." It gave these examples:
- a loud argument on the street;
- a political debate in a park;
- the public interactions of police officers with citizens (if done by a member of the general public); and
- any other conversation loud enough to be overheard by others whether in a private or public setting.
Although the opinion in Clark is a brief 9 pages, it's substantial and well-reasoned.
Equally brief and well-reasoned, although somewhat more complex, is the companion opinion in Melongo. The state argued that Melongo's First Amendment claim was not cognizable on appeal, unlike the Due Process claim, and that the constitutional claims were inconsistent with her defense at trial. Nevertheless, the court found that the statutory provision was unconstitutional under the First Amendment for the same rationale as in Clark. Melongo also raised a constitutional claim to the "publishing provision" of the statute, which further criminalizes the "publishing" of any recording made without consent. The court similarly found this provision overbroad.
It will be interesting to see how the Illinois legislature responds.
Friday, March 21, 2014
Following the trend which we most recently discussed here and here, Senior United States District Judge for the Eastern District of Michigan, Bernard Friedman, declared the state's same-sex marriage ban unconstitutional in his opinion today in DeBoer v. Snyder.
At issue was Michigan's state constitutional amendment, Mich. Const. Art. I, § 25, which the court referred to as the Michigan Marriage Amendment, MMA, passed by voter referendum in November 2004. The judge held a trial limiting the issue to whether the MMA "passed rational basis review" under the Fourteenth Amendment and held that it did not because it violated the Equal Protection Clause. The court stated it therefore did not reach the Due Process Clause question.
The state proffered the by now familiar government interests to satisfy the required "legitimate" government interest:
- providing an optimal environment for child rearing;
- proceeding with caution before altering the traditional definition of marriage; and
- upholding tradition and morality.
In evaluating each of these, the judge reached the by now familiar conclusions. Judge Friedman discussed the evidence at trial, holding that there was "no logical connection between banning same- sex marriage and providing children with an 'optimal environment' or achieving 'optimal outcomes;'" that the "wait and see" approach did not satisfy the legitimate government interest standard; and finally that upholding tradition and morality likewise did not satisfy the legitimate government interest standard, citing several of the recent cases that have held likewise.
Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. Having failed to establish such an interest in the context of same-sex marriage, the MMA cannot stand.
The judge also rejected the argument that the MMA's status as a constitutional amendment prompted by voter referendum was relevant, quoting the famous language from the 1943 flag-salute First Amendment case of West Virginia Bd. of Ed. v. Barnette: the "very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy" and "to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."
Judge Friedman's decision is closely and carefully reasoned, although it closes with a rhetorical paragraph that labels the opinion "a step in the right direction."
The Judge enjoined the enforcement of the same-sex marriage ban and unlike some other judges, he did not order a stay.
[image: Map of Michigan circa 1836 via]
Saturday, March 15, 2014
In an opinion in Edwards v. Beck, a federal judge permanently enjoined portions of Arkansas' Act 301, which imposed regulations on the performance of abortions in Arkansas.
Judge Wright considered the Act's three provisions: a heartbeat testing requirement; a disclosure requirement; and a ban on abortions when a fetal heartbeat is detected and the fetus has reached twelve weeks’ gestation.
She found that the 12 week ban prohibits pre-viability abortions and "thus impermissibly infringes a woman’s Fourteenth Amendment right to elect to terminate a pregnancy before viability."
Yet Judge Wright concluded that the disclosure and heartbeat testing could be severed from the unconstitutional 12 week provision, because they are
independently capable of furthering the stated purpose of Act 301, to protect unborn children, and that they are severable from the unconstitutional twelve-week ban and the requirement of license revocation for a physician who performs an abortion banned under the Act. The State, from the inception of a pregnancy, maintains its own interest in protecting the life of a fetus that may become a child, and the Supreme Court has recognized that the disclosure of truthful information about fetal development is relevant to a woman’s decision- making process and is rationally related to the State’s interest in protecting the unborn.
The judge's analysis on the severability issue is relatively slight and she could easily have reached the opposite conclusion under her articulated rationales. But she decided that only the ban on 12 week abortions was declared unconstitutional.
Thursday, March 6, 2014
In its unanimous opinion in Commonwealth v. Robertson, the Supreme Judicial Court of Massachusetts avoided the constitutional challenge to the state's statutory prohibition of "secretly photographing or videotaping a person 'who is nude or partially nude,'" G.L. c. 272, § 105 (b ), by interpreting the statute not to apply to taking photographs at the areas under women's skirts ("upskirting").
The defendant had argued that if § 105 (b ) "criminalizes the act of photographing a fully clothed woman under her skirt while she is in a public place, it is both unconstitutionally vague and overbroad," but because the court "concluded that § 105 (b ) does not criminalize the defendant's alleged conduct," it did not reach the constitutional questions.
Yet, as in many cases, the court's statutory interpretation does occur in the shadow of the constitutional challenge. The court reasoned that the statute "does not penalize the secret photographing of partial nudity, but of "a person who is ... partially nude" (emphasis in original). Courts have long struggled with definitions of "nudity" - - - recall the United States Supreme Court's recent foray into this area in FCC v. Fox with an oral argument that drew attention to the nude buttocks in the courtroom decor.
Additionally, the court reasoned that the statutory element of in "such place and circumstance [where the person] would have a reasonable expectation of privacy in not being so photographed" did not cover the alleged acts of photography in a public place, such as the Massachusetts Bay Transportation Authority (MBTA) trolley. The court rejected the Commonwealth's argument emphasizing the "so" in "so photographed" - - - that "because a female MBTA passenger has a reasonable expectation of privacy in not having the area of her body underneath her skirt photographed, which she demonstrates by wearing the skirt" by interpreting "so" as simply referential.
The court concluded that at the
core of the Commonwealth's argument . . . is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but § 105 (b ) in its current form does not address it.
And the court noted that in the past legislative session proposed amendments to § 105 were before the Legislature that appeared to attempt to address precisely the type of "upskirting" conduct at issue in the case. Given the court's opinion in Robertson, this issue will most likely be again before the Massachusetts legislature.