Friday, January 22, 2016

Kansas Appellate Court Affirms Finding That Kansas's "Dismemberment Abortion Act" is Unconstitutional under State Constitution

The Kansas Court of Appeals, the intermediate appellate court, has found that the Kansas Constitution includes a due process right applicable to abortion and that the Kansas Unborn Child Protection from Dismemberment Abortion Act (SB95) violates that right in its opinion by Judge Steve Leben in Hodes & Nauser v. Schmidt.

Before the discussion of the constitutionality of the Act, there were some preliminary - - - and unusual - - - issues, including some noteworthy matters of procedure. Unusually, the Court of Appeals heard the case en banc rather in a panel of three.  And presumably also unusual, the judges were "equally divided, seven voting to affirm the district court and seven voting to reverse."  Thus, the trial court's ruling granting a preliminary injunction against the Act was affirmed. 

Appeals
Judges of the Kansas Court of Appeals via


Additionally, there were some state constitutional law issues.  Importantly, the plaintiffs' argument that the Act is unconstitutional rests solely on the state constitution.  As the Leben opinion stated, this was a case of first impression and a  "plaintiff has the procedural right to choose the legal theories he or she will pursue; we cannot force the plaintiffs here to choose another legal avenue.")  But the Kansas State Constitution does not include a due process clause - - - or even the words "due process" - - - unlike the United States Constitution's Fifth and Fourteenth Amendments, in which the right to an abortion has been anchored.  Instead, plaintiffs argued, and the court found, that §1 and §2 of the Kansas Constitution Bill of Rights include a due process right despite their explicit language:

§ 1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.

§ 2. Political power; privileges. All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.

Judge Leben's finding was based in large part on previous decisions of the Kansas Supreme Court.  Where the dissent differed was not on the matter of due process as a general matter but on the specific inclusion of "abortion."  Indeed, as Judge Leben's opinion admitted "What the Kansas Supreme Court has not yet done is apply substantive-due-process principles in a case involving personal or fundamental rights, like the right to contraception, the right to marry, or the right to abortion."  But as Judge Leben's opinion noted, "the Kansas Supreme Court has explicitly recognized a substantive-due- process right under the Kansas Constitution and has applied a substantive-due-process legal standard equivalent to the one applicable under the Fourteenth Amendment at the time of these Kansas decisions."  This past practice was an embrace of the present, and Judge Leben's opinion interestingly quotes the Court's recent opinion by Justice Kennedy Obergefell  as well as opinions from the Kansas Supreme Court.  Judge Leben nicely sums up the position:

The rights of Kansas women in 2016 are not limited to those specifically intended by the men who drafted our state's constitution in 1859.

Having decided that the Kansas constitutional text merits a co-extensive interpretation with the federal constitution, Judge Leben's opinion for the Kansas Court of Appeal does not rest on "adequate and independent state grounds" under Michigan v. LongJudge Gordon Atcheson's extensive and scholarly concurring opinion makes the case that §1 of the Kansas Bill of Rights provides "entirely separate constitutional protection without direct federal counterpart" for abortion and that such protection is greater under the Kansas state constitution than under the Fourteenth Amendment.

Under the co-extensive interpretation, Judge Leben's opinion thus confronted the constitutionality of the Kansas Act under the substantive due process "undue burden" standard.  This entailed an application of the disparate Carhart cases: Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007).  In Stenberg, the Court concluded Nebraska's so-called "partial-birth abortion" statute was unconstitutional; in Gonzales, the Court concluded that the federal so-called "partial-birth abortion" statute was constitutional.

The Judge Leben opinion distinguished Gonzales:

But the circumstances here are quite unlike Gonzales. There, the Court considered a ban on an uncommon procedure and noted that the most common and generally safest abortion method remained available. Here, the State has done the opposite, banning the most common, safest procedure and leaving only uncommon and often unstudied options available.

Interestingly, Judge Atcheson's concurring opinion responded to the Justice Kennedy's language in Gonzales and the language of the Kansas Act:

The State's remaining argument rests on the unaesthetic description of a D &E abortion contained in Senate Bill 95 and in Gonzales v. Carhart (2007). But aesthetics really cannot justify legislative limitations on safe medical procedures. The lack of justification is even more pronounced when the procedure is integral to a woman's constitutional right to self-determination and reproductive freedom. The government cannot impose upon an essential right because some exercise of the right may be unaesthetic or even repulsive to some people. That's all the more true when those people needn't see or participate in the protected activity.

The dissenting opinion concludes that there is "nothing in the text or history of §§1 and 2 of the Kansas Constitution Bill of Rights to lead this court to conclude that these provisions were intended to guarantee a right to abortion."

This matter is surely going to the Kansas Supreme Court, as Judge Leben's opinion for the Kansas Court of Appeals acknowledged.  Rendered on the 43rd anniversary of the United States Supreme Court's decision in Roe v. Wade and as the Court prepares to consider its first abortion case in 8 years, Whole Woman's Health v. Cole, the Kansas Court of Appeals evenly split decision exemplifies how divided opinion on this issue can be.

January 22, 2016 in Abortion, Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Gender, International, Opinion Analysis, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)

Friday, January 8, 2016

Daily Read: The Late Judge Judith Kaye's Dissenting Opinion in New York's Same-Sex Marriage Challenge

In Memoriam:

Former Chief Judge of New York's highest court, the New York Court of Appeals, Judith Kaye.

Judith_S.KayeThe New York Times obituary notes the highlights of her amazing career, including her dissenting opinion in Hernandez v. Robles, the New York same-sex marriage case, in 2006.  Today's "Daily Read" reproduces that opinion, notable for its lucid reasoning as well as its excellent analytic structure.  It is in sharp contrast to the majority's opinion which became the subject of derisive comments, including most notably John Mitchell's  terrific send-up Chatting with the Lady in the Grocery Store about Hernandez V. Robles, the New York Same-Sex Marriage Case (available on srrn).

 

Here is Chief Judge Kaye's opinion in full:

 

Chief Judge Kaye (dissenting).

Plaintiffs (including petitioners) are 44 same-sex couples who wish to marry. They include a doctor, a police officer, a public school teacher, a nurse, an artist and a state legislator. Ranging in age from under 30 to 68, plaintiffs reflect a diversity of races, religions and ethnicities. They come from upstate and down, from rural, urban and suburban settings. Many have been together in committed relationships for decades, and many are raising children—from toddlers to teenagers. Many are active in their communities, serving on their local school board, for example, or their cooperative apartment building board. In short, plaintiffs represent a cross-section of New Yorkers who want only to live full lives, raise their children, better their communities and be good neighbors.

For most of us, leading a full life includes establishing a family. Indeed, most New Yorkers can look back on, or forward to, their wedding as among the most significant events of their lives. They, like plaintiffs, grew up hoping to find that one person with whom they would share their future, eager to express their mutual lifetime pledge through civil marriage. Solely because of their sexual orientation, however—that is, because of who they love—plaintiffs are denied the rights and responsibilities of civil marriage. This State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition.

  1. Due Process

Under both the state and federal constitutions, the right to due process of law protects certain fundamental liberty interests, including the right to marry. Central to the right to marry is the right to marry the person of one's choice (see e.g. Crosby v State of N.Y., Workers' Compensation Bd., 57 NY2d 305, 312 [1982] ["clearly falling within (the right of privacy) are matters relating to the decision of whom one will marry"]; People v Shepard, 50 NY2d 640, 644 [1980] ["the government has been prevented from interfering with an individual's decision about whom to marry"]). The deprivation of a fundamental right is subject to strict scrutiny and requires that the infringement be narrowly tailored to achieve a compelling state interest (see e.g. Carey v Population Services Int'l, 431 US 678, 686 [1977]).

Fundamental rights are those "which are, objectively, deeply rooted in this Nation's history and tradition . . . and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed" (Washington v Glucksberg, 521 US 702, 720-721 [1997] [internal quotation marks and citations omitted]). Again and again, the Supreme Court and this Court have made clear that the right to marry is fundamental (see e.g. Loving v Virginia, 388 US 1 [1967]; Zablocki v Redhail, 434 US 374 [1978]; Turner v Safley, 482 US 78 [1987]; Matter of Doe v Coughlin, 71 NY2d 48, 52 [1987]; Cooper v Morin, 49 NY2d 69, 80 [1979]; Levin v Yeshiva Univ., 96 NY2d 484, 500 [2001] [G.B. Smith, J., concurring] ["marriage is a fundamental constitutional right"]).

The Court concludes, however, that same-sex marriage is not deeply rooted in tradition, and thus cannot implicate any fundamental liberty. But fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights. Indeed, in recasting plaintiffs' invocation of their fundamental right to marry as a request for recognition of a "new" right to same-sex marriage, the Court misapprehends the nature of the liberty interest at stake. In Lawrence v Texas (539 US 558 [2003]), the Supreme Court warned against such error.

Lawrence overruled Bowers v Hardwick (478 US 186 [1986]), which had upheld a Georgia statute criminalizing sodomy. In so doing, the Lawrence court criticized Bowers for framing the issue presented too narrowly. Declaring that "Bowers was not correct when it was decided, and it is not correct today" (539 US at 578), Lawrence explained that Bowers purported to analyze—erroneously—whether the Constitution conferred a "fundamental right upon homosexuals to engage in sodomy" (539 US at 566 [citation omitted]). This was, however, the wrong question. The fundamental right at issue, properly framed, was the right to engage in private consensual sexual conduct—a right that applied to both homosexuals and heterosexuals alike. In narrowing the claimed liberty interest to embody the very exclusion being challenged, Bowers "disclose[d] the Court's own failure to appreciate the extent of the liberty at stake" (Lawrence, 539 US at 567).

The same failure is evident here. An asserted liberty interest is not to be characterized so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it (see Planned Parenthood of Southeastern Pa. v Casey, 505 US 833, 847 [1992] [it is "tempting . . . to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. . . . But such a view would be inconsistent with our law"]).

Notably, the result in Lawrence was not affected by the fact, acknowledged by the Court, that there had been no long history of tolerance for homosexuality. Rather, in holding that "[p]ersons in a homosexual relationship may seek autonomy for the[ ] purpose[ of making intimate and personal choices], just as heterosexual persons do" (539 US at 574), Lawrence rejected the notion that fundamental rights it had already identified could be restricted based on traditional assumptions about who should be permitted their protection. As the Court noted, "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom" (Lawrence, 539 US at 579; see also id. at 572 ["(h)istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry" (internal quotation marks and citation omitted)]; Cleburne v Cleburne Living Center, Inc., 473 US 432, 466 [1985] [Marshall, J., concurring in the judgment in part and dissenting in part] ["what once was a 'natural' and 'self-evident' ordering later comes to be seen as an artificial and invidious constraint on human potential and freedom"]).

Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.

Instead, the Supreme Court has repeatedly held that the fundamental right to marry must be afforded even to those who have previously been excluded from its scope—that is, to those whose exclusion from the right was "deeply rooted."[FN1]Well into the twentieth century, the sheer weight of precedent accepting the constitutionality of bans on interracial marriage was deemed sufficient justification in and of itself to perpetuate these discriminatory laws (see e.g. Jones v Lorenzen, 441 P2d 986, 989{**7 NY3d at 383} [Okla 1965] [upholding antimiscegenation law since the "great weight of authority holds such statutes constitutional"])—much as defendants now contend that same-sex couples should be prohibited from marrying because historically they always have been.

Just 10 years before Loving declared unconstitutional state laws banning marriage between persons of different races, 96% of Americans were opposed to interracial marriage (see brief of NAACP Legal Defense and Educational Fund, Inc., as amicus curiae in support of plaintiffs, at 5). Sadly, many of the arguments then raised in support of the antimiscegenation laws were identical to those made today in opposition to same-sex marriage (see e.g. Kinney v Commonwealth, 71 Va [30 Gratt] 858, 869 [1878] [marriage between the races is "unnatural" and a violation of God's will]; Pace v State, 69 Ala 231, 232 [1881] ["amalgamation" of the races would produce a "degraded civilization"]; see also Lonas v State, 50 Tenn [3 Heisk] 287, 310 [1871] ["(t)he laws of civilization demand that the races be kept apart"]).

To those who appealed to history as a basis for prohibiting interracial marriage, it was simply inconceivable that the right of interracial couples to marry could be deemed "fundamental." Incredible as it may seem today, during the lifetime of every Judge on this Court, interracial marriage was forbidden in at least a third of American jurisdictions. In 1948, New York was one of only 18 states in the nation that did not have such a ban. By 1967, when Loving was decided, 16 states still outlawed marriages between persons of different races. Nevertheless, even though it was the ban on interracial marriage—not interracial marriage itself—that had a long and shameful national tradition, the Supreme Court determined that interracial couples could not be deprived of their fundamental right to marry. [*21]

Unconstitutional infringements on the right to marry are not limited to impermissible racial restrictions. Inasmuch as the fundamental right to marry is shared by "all the State's citizens" (Loving, 388 US at 12), the State may not, for example, require individuals with child support obligations to obtain court approval before getting married (see Zablocki, 434 US 374 [1978]). Calling Loving the "leading decision of this Court on the right to marry," Justice Marshall made clear in Zablocki that Loving

"could have rested solely on the ground that the{**7 NY3d at 384} statutes discriminated on the basis of race in violation of the Equal Protection Clause. But the Court went on to hold that laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry. . . .

"Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals" (434 US at 383-384 [citation omitted]).

Similarly, in Turner (482 US 78 [1987]), the Supreme Court determined that the right to marry was so fundamental that it could not be denied to prison inmates (see also Boddie v Connecticut, 401 US 371 [1971] [state requirement that indigent individuals pay court fees to obtain divorce unconstitutionally burdened fundamental right to marry]).

Under our Constitution, discriminatory views about proper marriage partners can no more prevent same-sex couples from marrying than they could different-race couples. Nor can "deeply rooted" prejudices uphold the infringement of a fundamental right (see People v Onofre, 51 NY2d 476, 490 [1980] ["disapproval by a majority of the populace . . . may not substitute for the required demonstration of a valid basis for intrusion by the State in an area of important personal decision"]). For these reasons, the NAACP Legal Defense and Educational Fund, as amicus, contends that

"[a]lthough the historical experiences in this country of African Americans, on the one hand, and gay men and lesbians, on the other, are in many important ways quite different, the legal questions raised here and in Loving are analogous. The state law at issue here, like the law struck down in Loving, restricts an individual's right to marry the person of his or her choice. We respectfully submit that the decisions below must be reversed if this Court follows the reasoning of the United States Supreme Court's decision in Loving" (brief of NAACP Legal Defense and Educational Fund, Inc., as amicus curiae in support of plaintiffs, at 3-4; see also brief of New York County Lawyers' Association and National Black Justice Coalition, as amici curiae in support of plaintiffs [detailing history of antimiscegenation laws and public attitudes toward interracial marriage]).{**7 NY3d at 385}

It is no answer that same-sex couples can be excluded from marriage because "marriage," by definition, does not include them. In the end, "an argument that marriage is heterosexual because it 'just is' amounts to circular reasoning" (Halpern v Attorney Gen. of Can., 65 OR3d 161, 172 OAC 276, ¶ 71 [2003]). "To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question we are asked to decide" (Goodridge v Department of Pub. Health, 440 Mass 309, 348, 798 NE2d 941, 972-973 [2003] [Greaney, J., concurring]). [*22]

The claim that marriage has always had a single and unalterable meaning is a plain distortion of history. In truth, the common understanding of "marriage" has changed dramatically over the centuries (see brief of Professors of History and Family Law, as amici curiae in support of plaintiffs). Until well into the nineteenth century, for example, marriage was defined by the doctrine of coverture, according to which the wife's legal identity was merged into that of her husband, whose property she became. A married woman, by definition, could not own property and could not enter into contracts.[FN2] Such was the very "meaning" of marriage. Only since the mid-twentieth century has the institution of marriage come to be understood as a relationship between two equal partners, founded upon shared intimacy and mutual financial and emotional support. Indeed, as amici professors note, "The historical record shows that, through adjudication and legislation, all of New York's sex-specific rules for marriage have been invalidated save for the one at issue here."

That restrictions on same-sex marriage are prevalent cannot in itself justify their retention. After all, widespread public opposition to interracial marriage in the years before Loving could not sustain the antimiscegenation laws. "[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice" (Lawrence, 539 US at 577-578 [internal quotation marks and citation omitted]; see also id. at 571 [fundamental right to engage in private consensual sexual conduct extends to homosexuals, notwithstanding that "for centuries there have been powerful voices to condemn homosexual{**7 NY3d at 386} conduct as immoral"]). The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it.

  1. Equal Protection

By virtue of their being denied entry into civil marriage, plaintiff couples are deprived of a number of statutory benefits and protections extended to married couples under New York law. Unlike married spouses, same-sex partners may be denied hospital visitation of their critically ill life partners. They must spend more of their joint income to obtain equivalent levels of health care coverage. They may, upon the death of their partners, find themselves at risk of losing the family home. The record is replete with examples of the hundreds of ways in which committed same-sex couples and their children are deprived of equal benefits under New York law. Same-sex families are, among other things, denied equal treatment with respect to intestacy, inheritance, tenancy by the entirety, taxes, insurance, health benefits, medical decisionmaking, workers' compensation, the right to sue for wrongful death and spousal privilege. Each of these statutory inequities, as well as the discriminatory exclusion of same-sex couples from the benefits and protections of civil marriage as a whole, violates their constitutional right to equal protection of the laws.

Correctly framed, the question before us is not whether the marriage statutes properly benefit those they are intended to benefit—any discriminatory classification does that—but whether there exists any legitimate basis for excluding those who are not covered by the law. [*23]That the language of the licensing statute does not expressly reference the implicit exclusion of same-sex couples is of no moment (see Domestic Relations Law § 13 ["persons intended to be married" must obtain a marriage license]). The Court has, properly, construed the statutory scheme as prohibiting same-sex marriage. That being so, the statute, in practical effect, becomes identical to—and, for purposes of equal protection analysis, must be analyzed as if it were—one explicitly providing that "civil marriage is hereby established for couples consisting of a man and a woman," or, synonymously, "marriage between persons of the same sex is prohibited."

On three independent grounds, this discriminatory classification is subject to heightened scrutiny, a test that defendants concede it cannot pass.{**7 NY3d at 387}

  1. Heightened Scrutiny
  2. Sexual Orientation Discrimination

Homosexuals meet the constitutional definition of a suspect class, that is, a group whose defining characteristic is "so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others" (Cleburne, 473 US at 440). Accordingly, any classification discriminating on the basis of sexual orientation must be narrowly tailored to meet a compelling state interest (see e.g. Alevy v Downstate Med. Ctr. of State of N.Y., 39 NY2d 326, 332 [1976]; Matter of Aliessa v Novello, 96 NY2d 418, 431 [2001]).

"No single talisman can define those groups likely to be the target of classifications offensive to the Fourteenth Amendment and therefore warranting heightened or strict scrutiny" (Cleburne, 473 US at 472 n 24 [Marshall, J., concurring in the judgment in part and dissenting in part]). Rather, such scrutiny is to be applied when analyzing legislative classifications involving groups who "may well be the target of the sort of prejudiced, thoughtless, or stereotyped action that offends principles of equality found in" the Constitution (id. at 472).

Although no single factor is dispositive, the Supreme Court has generally looked to three criteria in determining whether a group subject to legislative classification must be considered "suspect." First, the Court has considered whether the group has historically been subjected to purposeful discrimination. Homosexuals plainly have been, as the Legislature expressly found when it recently enacted the Sexual Orientation Non-Discrimination Act (SONDA), barring discrimination against homosexuals in employment, housing, public accommodations, education, credit and the exercise of civil rights. Specifically, the Legislature found

"that many residents of this state have encountered prejudice on account of their sexual orientation, and that this prejudice has severely limited or actually prevented access to employment, housing and other basic necessities of life, leading to deprivation and suffering. The legislature further recognizes that this prejudice has fostered a general climate of hostility and distrust, leading in some instances to{**7 NY3d at 388} physical violence against those perceived to be homosexual or bisexual" (L 2002, ch 2, § 1; see also brief of Parents, Families & Friends of Lesbians and Gays, Inc., et al., as amici curiae in support of plaintiffs, at 22-49 [detailing history of state-sanctioned discrimination against gays and lesbians]).

[*24]

Second, the Court has considered whether the trait used to define the class is unrelated to the ability to perform and participate in society. When the State differentiates among its citizens "on the basis of stereotyped characteristics not truly indicative of their abilities" (Massachusetts Bd. of Retirement v Murgia, 427 US 307, 313 [1976]), the legislative classification must be closely scrutinized. Obviously, sexual orientation is irrelevant to one's ability to perform or contribute.

Third, the Court has taken into account the group's relative political powerlessness. Defendants contend that classifications based on sexual orientation should not be afforded heightened scrutiny because, they claim, homosexuals are sufficiently able to achieve protection from discrimination through the political process, as evidenced by the Legislature's passage of SONDA in 2002. SONDA, however, was first introduced in 1971. It failed repeatedly for 31 years, until it was finally enacted just four years ago. Further, during the Senate debate on the Hate Crimes Act of 2000, one Senator noted that "[i]t's no secret that for years we could have passed a hate-crimes bill if we were willing to take out gay people, if we were willing to take out sexual orientation" (New York State Senate Debate on Senate Bill S 4691-A, June 7, 2000, at 4609 [statement of Senator Schneiderman]; accord id. at 4548-4549 [statement of Senator Connor]). The simple fact is that New York has not enacted anything approaching comprehensive statewide domestic partnership protections for same-sex couples, much less marriage or even civil unions.

In any event, the Supreme Court has never suggested that racial or sexual classifications are not (or are no longer) subject to heightened scrutiny because of the passage of even comprehensive civil rights laws (see Cleburne, 473 US at 467 [Marshall, J., concurring in the judgment in part and dissenting in part]). Indeed, sex discrimination was first held to deserve heightened scrutiny in 1973—after passage of title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, federal laws prohibiting sex discrimination. Such measures acknowledge—rather {**7 NY3d at 389}than mark the end of—a history of purposeful discrimination (see Frontiero v Richardson, 411 US 677, 687-688 [1973] [citing antidiscrimination legislation to support conclusion that classifications based on sex merit heightened scrutiny]).

Nor is plaintiffs' claim legitimately answered by the argument that the licensing statute does not discriminate on the basis of sexual orientation since it permits homosexuals to marry persons of the opposite sex and forbids heterosexuals to marry persons of the same sex. The purported "right" of gays and lesbians to enter into marriages with different-sex partners to whom they have no innate attraction cannot possibly cure the constitutional violation actually at issue here. "The right to marry is the right of individuals, not of . . . groups" (Perez v Sharp, 32 Cal 2d 711, 716, 198 P2d 17, 20 [1948]). "Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains" (32 Cal 2d at 725, 198 P2d at 25). Limiting marriage to opposite-sex couples undeniably restricts gays and lesbians from marrying their chosen same-sex partners whom "to [them] may be irreplaceable" (id.)—and thus constitutes discrimination based on sexual orientation.[FN3]

[*25]2. Sex Discrimination

The exclusion of same-sex couples from civil marriage also discriminates on the basis of sex, which provides a further basis for requiring heightened scrutiny. Classifications based on sex must be substantially related to the achievement of important governmental objectives (see e.g. Craig v Boren, 429 US 190, 197 [1976]), and must have an "exceedingly persuasive justification" (Mississippi Univ. for Women v Hogan, 458 US 718, 724 [1982] [citations omitted]).

Under the Domestic Relations Law, a woman who seeks to marry another woman is prevented from doing so on account of her sex—that is, because she is not a man. If she were, she would be given a marriage license to marry that woman. That{**7 NY3d at 390} the statutory scheme applies equally to both sexes does not alter the conclusion that the classification here is based on sex. The "equal application" approach to equal protection analysis was expressly rejected by the Supreme Court in Loving: "[W]e reject the notion that the mere 'equal application' of a statute containing [discriminatory] classifications is enough to remove the classifications from the [constitutional] proscription of all invidious . . . discriminations" (388 US at 8). Instead, the Loving court held that "[t]here can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race [where the] statutes proscribe generally accepted conduct if engaged in by members of different races" (id. at 11; see also Johnson v California, 543 US 499, 506 [2005]; McLaughlin v Florida, 379 US 184, 191 [1964]; Anderson v Martin, 375 US 399, 403-404 [1964]; Shelley v Kraemer, 334 US 1, 21-22 [1948]; J. E. B. v Alabama ex rel. T. B., 511 US 127, 141-142 [1994] [government exercise of peremptory challenges on the basis of gender constitutes impermissible sex discrimination even though based on gender stereotyping of both men and women]).

  1. Fundamental Right

"Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests" (Lawrence, 539 US at 575). Because, as already discussed, the legislative classification here infringes on the exercise of the fundamental right to marry, the classification cannot be upheld unless it is necessary to the achievement of a compelling state interest (see Onofre, 51 NY2d at 492 n 6; Alevy, 39 NY2d at 332; Eisenstadt v Baird, 405 US 438, 447 n 7 [1972]). "[C]ritical examination of the state interests advanced in support of the classification is required" (Zablocki, 434 US at 383 [internal quotation marks and citations omitted]). And if "the means selected by the State for achieving" even "legitimate and substantial interests" unnecessarily impinge on the right to marry, the statutory distinction "cannot be sustained" (id. at 388).

  1. Rational-Basis Analysis

Although the classification challenged here should be analyzed using heightened scrutiny, it does not satisfy even rational-basis review, which requires that the classification "rationally further{**7 NY3d at 391} a legitimate state interest" (Affronti v Crosson, 95 NY2d 713, 718 [2001], cert [*26]denied sub nom. Affronti v Lippman, 534 US 826 [2001]). Rational-basis review requires both the existence of a legitimate interest and that the classification rationally advance that interest. Although a number of interests have been proffered in support of the challenged classification at issue, none is rationally furthered by the exclusion of same-sex couples from marriage. Some fail even to meet the threshold test of legitimacy.

Properly analyzed, equal protection requires that it be the legislated distinction that furthers a legitimate state interest, not the discriminatory law itself (see e.g. Cooper, 49 NY2d at 78; Romer v Evans, 517 US 620, 633 [1996]). Were it otherwise, an irrational or invidious exclusion of a particular group would be permitted so long as there was an identifiable group that benefitted from the challenged legislation. In other words, it is not enough that the State have a legitimate interest in recognizing or supporting opposite-sex marriages. The relevant question here is whether there exists a rational basis for excluding same-sex couples from marriage, and, in fact, whether the State's interests in recognizing or supporting opposite-sex marriages are rationally furthered by the exclusion.

  1. Children

Defendants primarily assert an interest in encouraging procreation within marriage. But while encouraging opposite-sex couples to marry before they have children is certainly a legitimate interest of the State, the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone.

Nor does this exclusion rationally further the State's legitimate interest in encouraging heterosexual married couples to procreate. Plainly, the ability or desire to procreate is not a prerequisite for marriage. The elderly are permitted to marry, and many same-sex couples do indeed have children. Thus, the statutory classification here—which prohibits only same-sex couples, and no one else, from marrying—is so grossly underinclusive and overinclusive as to make the asserted rationale in promoting procreation "impossible to credit" (Romer, 517 US at 635).[FN4] Indeed, even the Lawrence dissenters observed that "encouragement of procreation" could not "possibly" be a justification for {**7 NY3d at 392}denying marriage to gay and lesbian couples, "since the sterile and the elderly are allowed to marry" (539 US at 605 [Scalia, J., dissenting]; see also Lapides v Lapides, 254 NY 73, 80 [1930] ["inability to bear children" does not justify an annulment under the Domestic Relations Law]).

Of course, there are many ways in which the government could rationally promote procreation—for example, by giving tax breaks to couples who have children, subsidizing child care for those couples, or mandating generous family leave for parents. Any of these benefits—and many more—might convince people who would not otherwise have children [*27]to do so. But no one rationally decides to have children because gays and lesbians are excluded from marriage.

In holding that prison inmates have a fundamental right to marry—even though they cannot procreate—the Supreme Court has made it clear that procreation is not the sine qua non of marriage. "Many important attributes of marriage remain . . . after taking into account the limitations imposed by prison life. . . . [I]nmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship" (Turner, 482 US at 95-96). Nor is there any conceivable rational basis for allowing prison inmates to marry, but not homosexuals. It is, of course, no answer that inmates could potentially procreate once they are released—that is, once they are no longer prisoners—since, as nonprisoners, they would then undeniably have a right to marry even in the absence of Turner.

Marriage is about much more than producing children, yet same-sex couples are excluded from the entire spectrum of protections that come with civil marriage—purportedly to encourage other people to procreate. Indeed, the protections that the State gives to couples who do marry—such as the right to own property as a unit or to make medical decisions for each other—are focused largely on the adult relationship, rather than on the couple's possible role as parents. Nor does the{**7 NY3d at 393} plurality even attempt to explain how offering only heterosexuals the right to visit a sick loved one in the hospital, for example, conceivably furthers the State's interest in encouraging opposite-sex couples to have children, or indeed how excluding same-sex couples from each of the specific legal benefits of civil marriage—even apart from the totality of marriage itself—does not independently violate plaintiffs' rights to equal protection of the laws. The breadth of protections that the marriage laws make unavailable to gays and lesbians is "so far removed" from the State's asserted goal of promoting procreation that the justification is, again, "impossible to credit" (Romer, 517 US at 635).

The State plainly has a legitimate interest in the welfare of children, but excluding same-sex couples from marriage in no way furthers this interest. In fact, it undermines it. Civil marriage provides tangible legal protections and economic benefits to married couples and their children, and tens of thousands of children are currently being raised by same-sex couples in New York. Depriving these children of the benefits and protections available to the children of opposite-sex couples is antithetical to their welfare, as defendants do not dispute (see e.g. Baker v State, 170 Vt 194, 219, 744 A2d 864, 882 [1999] ["(i)f anything, the exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against"]; cf. Matter of Jacob, 86 NY2d 651, 656 [1995] ["(t)o rule otherwise would mean that the thousands of New York children actually being raised in homes headed by two unmarried persons could have only one legal parent, not the two who want them"]). The State's interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender of the spouses.

Nor may the State legitimately seek either to promote heterosexual parents over homosexual parents, as the plurality posits, or to discourage same-sex parenting. First, granting such a preference to heterosexuals would be an acknowledgment of purposeful discrimination against homosexuals, thus constituting a flagrant equal protection violation. Second, such a preference would be contrary to the stated public policy of New York, and therefore irrational (see 18 NYCRR 421.16 [h] [2] [applicants to be adoptive parents "shall not be rejected solely on the basis of homosexuality"]; see also Jacob, 86 NY2d at 668 [same-sex partner of a legal parent may adopt that parent's child; "(a)ny proffered justification for rejecting (adoptions) based on a governmental policy disapproving of homosexuality or encouraging marriage would not apply"]; brief of American Psychological Association et al., as amici curiae in support of plaintiffs, at 34-43 [collecting the results of social scientific research studies which conclude that children raised by same-sex parents fare no differently from, and do as well as, those raised by opposite-sex parents in terms of the quality of the parent-child relationship and the mental health, development and social adjustment of the child]; brief of Association to Benefit Children et al., as amici curiae in support of plaintiffs, at 31-35 [same conclusion]).[FN5]

  1. Moral Disapproval

The government cannot legitimately justify discrimination against one group of persons as a mere desire to preference another group (see Metropolitan Life Ins. Co. v Ward, 470 US 869, 882 and n 10 [1985]). Further, the Supreme Court has held that classifications "drawn for the purpose of disadvantaging the group burdened by the law" can never be legitimate (Romer, 517 US at 633), and that "a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest" (Department of Agriculture v Moreno, 413 US 528, 534 [1973]; see also Onofre, 51 NY2d at 490 ["disapproval by a majority of the populace . . . may not substitute for the required demonstration of a valid basis for intrusion by the State in an area of important personal decision"]; Palmore v Sidoti, 466 US 429, 433 [1984] ["(p)rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect"]; Lawrence, 539 US at 571 [no legitimate basis to penalize gay and lesbian relationships notwithstanding that "for centuries there have been powerful voices to condemn homosexual conduct as immoral"]; id. at 583 [O'Connor, J., concurring in the judgment] ["(m)oral disapproval" of homosexuals cannot be a legitimate state interest]).

  1. Tradition

That civil marriage has traditionally excluded same-sex couples—i.e., that the "historic and cultural understanding of marriage" has been between a man and a woman—cannot in itself provide a rational basis for the challenged exclusion. To say that discrimination is "traditional" is to say only that the discrimination has existed for a long time. A classification, however, cannot be maintained merely "for its own sake" (Romer, 517 US at 635). Instead, the classification (here, the exclusion of gay men and lesbians from civil marriage) must advance a state interest that is separate from the classification itself (see Romer, 517 US at 633, 635). Because the "tradition" of excluding gay men and lesbians from civil marriage is no different from the classification itself, the exclusion cannot be justified on the basis of "history." Indeed, the justification of "tradition" does not explain the classification; it merely repeats it. Simply put, a history or tradition of discrimination—no matter how entrenched—does not make the discrimination constitutional (see also Goodridge, 440 Mass at 332 n 23, 798 NE2d at 961 n 23 ["it is circular reasoning, not analysis, to maintain that marriage must remain a heterosexual institution because that is what it historically has been"]).[FN6]

  1. Uniformity

The State asserts an interest in maintaining uniformity with the marriage laws of other states. But our marriage laws currently are not uniform with those of other states. For example, New York—unlike most other states in the nation—permits first cousins to marry (see Domestic Relations Law § 5). This disparity has caused no trouble, however, because well-settled principles of comity resolve any conflicts. The same well-settled principles of comity would resolve any conflicts arising from any disparity involving the recognition of same-sex marriages.

It is, additionally, already impossible to maintain uniformity among all the states, inasmuch as Massachusetts has now legalized same-sex marriage. Indeed, of the seven jurisdictions that border New York State, only Pennsylvania currently affords no legal status to same-sex relationships. Massachusetts, Ontario and Quebec all authorize same-sex marriage; Vermont and Connecticut provide for civil unions (see Vt Stat Ann, tit 15, § 1204 [a]; Conn Gen Stat § 46b-38nn); and New Jersey has a statewide domestic partnership law (see NJ Stat Ann § 26:8A-1 et seq.). Moreover, insofar as a number of localities within New York offer domestic partnership registration, even the law within the state is not uniform. Finally, and most fundamentally, to justify the exclusion of gay men and lesbians from civil marriage because "others do it too" is no more a justification for the discriminatory classification than the contention that the discrimination is rational because it has existed for a long time. As history has well taught us, separate is inherently unequal.

III. The Legislature

The Court ultimately concludes that the issue of same-sex marriage should be addressed by the Legislature. If the Legislature were to amend the statutory scheme by making it gender neutral, obviously the instant controversy would disappear. But this Court cannot avoid its obligation to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic. After all, by the time the Court decided Loving in 1967, many states had already repealed their antimiscegenation laws. Despite this trend, however, the Supreme Court did not refrain from fulfilling its constitutional obligation.

The fact remains that although a number of bills to authorize same-sex marriage have been introduced in the Legislature over the past several years, none has ever made it out of committee (see 2005 NY Senate-Assembly Bill S 5156, A 7463; 2005 NY Assembly Bill A 1823; 2003 NY Senate Bill S 3816; 2003 NY Assembly Bill A 7392; 2001 NY Senate Bill S 1205; see also 2005 NY Senate-Assembly Bill S 1887-A, A 3693-A [proposing establishment of domestic partnerships]; 2004 NY Senate-Assembly Bill S 3393-A, A 7304-A [same]).

It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation. The Court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy.

I am confident that future generations will look back on today's decision as an unfortunate misstep

footnotes:

Footnote 1: In other contexts, this Court has also recognized that due process rights must be afforded to all, even as against a history of exclusion of one group or another from past exercise of these rights (see e.g. Matter of Raquel Marie X., 76 NY2d 387, 397 [1990] [affording the right to custody of one's children to unwed fathers, despite a long history of excluding unwed fathers from that right]; Rivers v Katz, 67 NY2d 485, 495-496 [1986] [affording the right to refuse medical treatment to the mentally disabled, despite a long history of excluding the mentally ill from that right]).
Footnote 2: Moreover, until as recently as 1984, a husband could not be prosecuted for raping his wife (see People v Liberta, 64 NY2d 152 [1984]).
Footnote 3: Indeed, the true nature and extent of the discrimination suffered by gays and lesbians in this regard is perhaps best illustrated by the simple truth that each one of the plaintiffs here could lawfully enter into a marriage of convenience with a complete stranger of the opposite sex tomorrow, and thereby immediately obtain all of the myriad benefits and protections incident to marriage. Plaintiffs are, however, denied these rights because they each desire instead to marry the person they love and with whom they have created their family.
Footnote 4: Although the plurality asserts that the Legislature could not possibly exclude from marriage opposite-sex couples unable to have children because to do so would require "grossly intrusive inquiries" (plurality op at 365), no explanation is given as to why the Legislature could not easily remedy the irrationality inherent in allowing all childless couples to marry—if, as the plurality believes, the sole purpose of marriage is procreation—by simply barring from civil marriage all couples in which both spouses are older than, say, 55. In that event, the State would have no need to undertake intrusive inquiries of any kind.
Footnote 5: Nor could the State have a legitimate interest in privileging some children over others depending on the manner in which they were conceived or whether or not their parents were married (see Jacob, 86 NY2d at 667 [depriving children of legal relationship with de facto parents "based solely on their biological mother's sexual orientation or marital status . . . raise(s) constitutional concerns"]; Levy v Louisiana, 391 US 68, 71 [1968] [child born out of wedlock may not be denied rights enjoyed by other citizens]).
Footnote 6: Ultimately, as the Lawrence dissenters recognized, " 'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples" (539 US at 601 [Scalia, J., dissenting]), an illegitimate basis for depriving gay and lesbian couples of the equal protection of the laws.


January 8, 2016 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fundamental Rights, Gender, News, Recent Cases, Reconstruction Era Amendments, Sexual Orientation | Permalink | Comments (0)

Wednesday, January 6, 2016

Alabama's CJ Roy Moore Issues Administrative Order on Same-Sex Marriage

Despite the United States Supreme Court's holding last Term in Obergefell v. Hodges holding that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples, the controversial Chief Judge of the Alabama Supreme Court Roy Moore issued an " Adminstrative Order" forbidding probate judges from issuing same-sex marriage licenses "contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act" since those laws "remain in full force and effect."

Alabama5Today's administrative opinion is part of Moore's ongoing reaction to constitutional issues surrounding same-sex marriage.  After an Alabama federal judge issued an opinion finding the denial of same-sex marriage unconstitutional, Judge Moore argued that the Alabama was not bound by the federal courts on the same-sex marriage issue.  Recall that the United States Supreme Court declined to stay the federal judge's judgment.  Despite these direct orders, seemingly Moore's current argument in today's Administrative Order is that Obergfell does not apply to Alabama but only the states involved in the Sixth Circuit opinion to which the Court granted certiorari.

Judge Moore's "interesting" construction of constitutional law is not limited to the precedential value of United States Supreme Court opinions.  Several months ago - - - in a lesbian second-parent adoption case, E.L. - - - the Alabama Supreme held that Alabama need not accord full faith and credit to a Georgia decision because of a dissenting opinion. The United States Supreme Court stayed the decision in E.L. pending a decision on the petition for certiorari.

 

 

January 6, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Fundamental Rights, Jurisdiction of Federal Courts, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (0)

Tuesday, November 24, 2015

Seventh Circuit Finds Wisconsin's Physician "Admitting Privileges" Abortion Requirement Unconstitutional

In its divided opinion in Planned Parenthood of Wisconsin v. Schimel, the Seventh Circuit affirmed the district judge's grant of a permanent injunction against the 2013 Wisconsin Statute, §253.095(2), that prohibits a physician from performing an abortion unless she or he has admitting privileges at a hospital no more than 30 miles from the clinic in which the abortion is performed.

Writing for the majority, Judge Richard Posner (pictured) concluded that the state statute imposed an undue burden on women seeking abortions and focused on the statute's intent to "strew impediments to abortion" rather than achieve its stated purpose of protecting women's health. 

Posner, Richard 08-10Judge Posner first noted that the statute was signed into law on a Friday and required doctors comply with it by Sunday; this revealed the legislative intent to prevent abortions rather than protect women's health. 

Additionally, Judge Posner concluded that any focus on women's health was spurious.  First, "A woman who experiences complications from an abortion (either while still at the clinic where the abortion was per- formed or at home afterward) will go to the nearest hospital, which will treat her regardless of whether her abortion doc- tor has admitting privileges," citing the brief by the American College of Obstetricians and Gynecologists, the American Medical Association, and the Wisconsin Medical Society.  Second, citing the same brief, Judge Posner concluded that studies show that "complications from an abortion are both rare and rarely dangerous," and contended that this fact "further attenuates the need for abortion doctors to have admitting privileges."  Third, Posner found it troublesome that abortion was singled out for such an admitting privileges law:

Wisconsin appears to be indifferent to complications of any other outpatient procedures, even when they are far more likely to produce complications than abortions are. For example, the rate of complications resulting in hospitalization from colonoscopies done for screening purposes is four times the rate of complications requiring hospitalization from first-trimester abortions.

As to the "continuity of care" justification, Posner noted that while the statute requires the physician to have admitting privileges at a hospital within 30 miles, it does not require the physician to care for that patient at the hospital.

Judge Posner firmly rejected the argument that women in Wisconsin could exercise their constitutional right to an abortion in Chicago - - - across state lines - - - and further found that there was an undue burden for women given that such a trip could be "prohibitively expensive" especially for women living below the poverty line.

In his inimitable style, Judge Posner also provided his views on the Fifth Circuit's decision regarding Texas's HB2 in Whole Woman's Health v. Cole, to which the United States Supreme Court recently granted certiorari.  Judge Posner distinguished the Fifth Circuit's conclusion on the admitting privileges provision, noting that the plaintiffs there did not satisfy the court that the statute would lead to a substantial decline in the availability of abortion.  But Judge Posner also provided his opinion on the Texas statute's ambulatory surgical center requirements - - - notwithstanding the fact that a similar provision was not before the Seventh Circuit - - - noting that

The [Fifth Circuit] court remarked the absence of evidence that the remaining clinics could not expand their capacity to compensate for the closing of more than three-fourths of them,  although one wouldn’t think it necessary to parade evidence that the remaining clinics would find it extremely difficult to quadruple their capacity to provide abortions, which would require, in the face of fierce opposition to abortion clinics and the difficulty of relocating abortion doctors from the closed clinics, extensive physical enlargement to house additional patients and doctors.

Judge Posner also responded to the Fifth Circuit's previous decision on HB2 in Planned Parenthood of Greater Texas v. Abbott that "excoriated" the Seventh Circuit's opinion upholding the preliminary injunction against the Wisconsin statute for engaging in "empirical basis review." Judge Posner wrote:

But a statute that curtails the constitutional right to an abortion, such as the Wisconsin and Texas statutes, cannot survive challenge without evidence that the curtailment is justifiable by reference to the benefits conferred by the statute. The statute may not be irrational, yet may still impose an undue burden—a burden excessive in relation to the aims of the statute and the benefits likely to be conferred by it— and if so it is unconstitutional.

Judge Posner ultimately concluded that "We do not agree with the Fifth Circuit that evidence is irrelevant in a constitutional case concerning abortion."

Judge Daniel Manion's well-organized dissenting opinion disagrees with the majority at almost every turn.  For example, Judge Manion finds that abortion is "subject to less regulatory oversight than almost any area of medicine."  On the subject of state-lines, Judge Manion declares: "Consumers who live near the border of two states tend to shop at the closest destination, regardless of whether they reside in that state." Thus, the courts should consider "distance" rather than "the governor's mansion" to decide whether or not a regulation will constitute an undue burden.  Instead, Wisconsin - - - or the courts - - -need not intervene if "the market fails to provide qualified abortionists within its boundaries." 

For Posner, joined in the opinion by Judge David Hamilton, the overturning of Roe v. Wade is a "steep uphill fight," so persons opposed to abortion "proceed indirectly" in the guise of protecting women's health and thereby pass unconstitutional laws.  Whether or not Judge Posner's predictions will prove correct will be tested as the United States Supreme Court considers Whole Woman's Health this Term.

November 24, 2015 in Abortion, Courts and Judging, Due Process (Substantive), Gender, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0)

Wednesday, November 18, 2015

Federal Judge Finds Transgender Status a Fundamental Privacy Right

In an opinion denying a motion to dismiss in Love v. Johnson, United States District Judge for the Eastern District of Michigan Nancy Edmunds has concluded there is a fundamental privacy right in one's transgender status under the Fourteenth Amendment's Due Process Clause.  The constitutional challenge is to Michigan's policy for changing the sex designation on state-issued identification, including drivers licenses.  Under the policy, the only document that is accepted as a proof of sex designation is a certified birth certificate.   Thus, transgendered individuals would need an amended certified birth certificate - - - for which the procurement process is described as "onerous" - - - and could not use passports, which are specifically excluded by the Michigan policy.

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sample Michigan driver license via

In finding a fundamental right, the judge considered Sixth Circuit precedent that there were two types of fundamental rights protected “by the right to privacy that is rooted in substantive due process”:  the interest in “independence in making certain kinds of important decisions,” and the “interest in avoiding disclosure of personal matters.”  The court found that the latter - - - the "informational privacy" interest - - - was implicated.  This right must not only relate to a "fundamental liberty interest" but must satisfy either of two conditions: "the release of personal information could lead to bodily harm" or "the information released was of a sexual, personal, and humiliating nature."  The judge found that both 'the potential for harm' and 'the personal nature' conditions were satisfied.  The judge rejected the State's argument that the plaintiffs had not satisfied the harm prong because they had not shown sufficiently specific danger to themselves; it recognized "hostility and intolerance" and cited supporting Second Circuit caselaw.

The judge then applied strict scrutiny, writing that when

state action infringes upon a fundamental right, “such action will be upheld under the substantive due process component of the Fourteenth Amendment only where the governmental action furthers a compelling state interest, and is narrowly drawn to further that state interest.”  Defendant vaguely identifies two purported interests–albeit not in the context of a fundamental right–in support of the Policy: (1) “maintaining accurate state identification documents” to “promote effective law enforcement” and, (2) ensuring “that the information on the license is consistent with other state records describing the individual.”

[citations and footnote omitted].   The judge found that the means chosen - - - the restrictive policy - - - bears "little, if any, connection" to the "purported interests."  The judge considered two facts especially salient.  First, the Michigan policy applied only to those wishing to change the sex designation on a drivers license, not to procure an original drivers license (in which case a passport would be acceptable identification).  Second,  Michigan's policy was especially restrictive: the majority of other states, as well as the federal government, did not require a certified birth certificate and thus the judge stated she was "unable to conclude at this juncture that the Policy narrowly serves the state’s interest in maintaining “accurate” identification documents or promoting effective law enforcement."

While the complaint raised other constitutional claims, including an equal protection claim, the judge found the motion to dismiss need not be considered as to those claims given the conclusion that there is a valid substantive due process claim which will move forward.

 

November 18, 2015 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexuality | Permalink | Comments (1)

Friday, November 13, 2015

Supreme Court Grants Certiorari in Texas HB2 Abortion Case

The United States Supreme Court today granted certiorari in Whole Woman's Health v. Cole to the Fifth Circuit's decision essentially upholding the bulk of the controversial HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis).   Recall that a divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.

The Fifth Circuit's most recent opinion, reversing the district judge, held that HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements, did not impose an "undue burden" on women and were thus constitutional under the Fourteenth Amendment's Due Process Clause. 

596px-Texas_travel_map.svgThe Fifth Circuit did find that HB2 was unconstitutional as applied to the Whole Woman's Health facility in McAllen, Texas, but not as to the the Reproductive Services Facility in El Paso, Texas.  The facility in McAllen is the only one in the "Rio Grande Valley."  However, there is another facility close to the closed facility in El Paso - - - a mere 12 miles away - - - but importantly across the state line in New Mexico.  The Fifth Circuit distinguished its own opinion in Jackson Women's Health Organization v. Currier regarding Mississippi's restrictive abortion law which had the effect of closing all the clinics in the state, by emphasizing the fact that even before HB2 "half of the patients at the St. Teresa [New Mexico] clinic came from El Paso which is in the same 'cross-border' metropolitan area as St. Teresa," and including a footnote that the court's analysis would be different "in the context of an international border."   Thus, the court found it irrelevant that the nearest in-state facility was 550 miles away.

The United States Supreme Court's grant of certiorari means that the Court will consider direct abortion regulations - - - and thus the continuing precedential value of Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) - - - for the first time since Carhart v. Gonzales in 2007 in which the Court upheld the controversial federal so-called partial birth abortion ban.  The Court's most recent foray into the abortion controversy was its 2014 opinion in McCullen v. Coakley finding Massachusetts' buffer-zone legislation protecting abortion clinics violative of the First Amendment.

November 13, 2015 in Abortion, Courts and Judging, Current Affairs, Due Process (Substantive), Fourteenth Amendment, Gender, Reproductive Rights, Supremacy Clause | Permalink | Comments (0)

Monday, October 19, 2015

Second Circuit Upholds Bulk of Gun Restrictions Against Second Amendment Challenges

In its extensive opinion in the consolidated cases of  New York State Rifle and Pistol Ass'n v. Cuomo and  The Connecticut Citizens' Defense League v. Malloy, a panel of Second Circuit substantially upheld gun restrictions passed by New York and Connecticut subsequent to the December 2012 "mass murders at Sandy Hook Elementary School in Newtown, Connecticut." The court largely affirmed the district judge's opinion finding the bulk of New York's SAFE Act constitutional.

The central challenge was a Second Amendment one and the court applied the two-step inquiry that is becoming accepted throughout the circuits.

The first question is whether the government restriction burdens conduct protected by the Second Amendment: the Second Amendment protects only “the sorts of weapons” that are (1) “in common use” and (2) “typically possessed by law‐abiding citizens for lawful purposes.”

If so, the court then moves to the second inquiry, determining initially the "level of scrutiny" to be applied by considering two factors: (1) “how close the law comes to the core of the Second Amendment right” and (2) “the severity of the law’s burden on the right.”  After determining the level of scrutiny - - - here, intermediate scrutiny - - - the court then applies the standard asking "whether the statutes at issue are 'substantially related to the achievement of an important governmental interest.'"
 
Affirming the respective district judges, the Second Circuit upheld the constitutionality of state prohibitions on semiautomatic assault weapons and large‐capacity magazines.  The Second Circuit held that Connecticut's specific prohibition on the non‐ semiautomatic Remington 7615 and New York's "seven‐round load limit" violated the Second Amendment.
Édouard_Manet_-_Pertuiset,_le_chasseur_de_lions
Manet, Mister Pertuiset, The Lion Hunter, 1881 via
 
The court also considered several due process vagueness challenges to specific provisions in the laws, reversing the conclusion of the New York federal district judge that certain provisions - - - pertaining to “versions” and “muzzle breaks”- - - were unconstitutionally vague.
 
The Second Circuit's opinion is closely reasoned and well within what is becoming the standard within all the circuits.  Although the opinion several times mentions the absence of clear United States Supreme Court precedent - - - reminding that neither District of Columbia v. Heller (2008) nor McDonald v. City of Chicago (2010) "delineated the precise scope of the Second Amendment or the standards by which lower courts should assess the constitutionality of firearms restrictions" - - - this should not be a case that the Second Circuit would be moved to reconsider or that the Supreme Court would find worthy of review - - - unless a ban on the possession of automatic assault weapons should be subject to strict scrutiny under the Second Amendment.
 

October 19, 2015 in Due Process (Substantive), Opinion Analysis, Second Amendment | Permalink | Comments (1)

Thursday, October 1, 2015

Court Grants Review of Bias of Pennsylvania State Supreme Court Justice in Death Penalty Case

The Court has granted certiorari in Williams v. Pennsylvania on issues of due process and the Eighth Amendment revolving around former Chief Justice of the Pennsylvania Supreme Court Ronald Castille (pictured). 

RCastillePA

Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013.  Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row."

One of those people on death row is Terrence Williams, the petitioner in Williams v. Pennyslvania.  Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief.  Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty.  Williams' claim, moreover, is based on prosecutorial misconduct. 

Williams relies on Caperton v. Massey (2009) regarding judicial bias. Unlike the situation of Justice Benjamin in Caperton, Castille did not cast a "deciding vote" on the court.  [Nevertheless, Castille's concurring opinion is worth reading for its defensiveness].  Recognizing this distinction, Williams also relies on Atena Life Insurance v. Lavoie (1986), and notes there is a circuit split regarding bias when the biased decided is only one member of a multi-member tribunal.

October 1, 2015 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Supreme Court (US) | Permalink | Comments (0)

Tuesday, September 29, 2015

Second Circuit Upholds New York's Credit Card Surcharge Prohibition

Reversing United States District Judge Jed Rakoff who had declared unconstitutional New York General Business Law § 518 prohibiting sellers from imposing a surcharge on customers who use credit cards, the Second Circuit's opinion in Expressions Hair Design v. Schneiderman held that the law does not violate either the First Amendment or the Due Process Clause. [UPDATE: The Second Circuit issued an  AMENDED OPINION on December 11, 2015].

The expressive element in the challenge to pricing regulation is not immediately obvious.  But as Judge Debra Ann Livingston's opinion for the unanimous panel explains:

Section 518 does not prohibit all differentials  between the price ultimately charged to cash customers and the price ultimately charged to credit‐card customers; it forbids charging credit‐card customers an additional amount above the regular price that is not also charged to cash customers, but it permits offering cash customers a discount below the regular price that is not also offered to credit‐card customers. (That is, it allows what we have termed “cash discounts.”) To illustrate, if a seller’s regular price is $100, it may not charge credit‐card customers $103 and cash customers $100, but if the seller’s regular price is $103, it may charge credit‐card customers $103 and cash customers $100.

Plaintiffs’ submissions reveal that they are claiming First Amendment protection for two distinct kinds of pricing schemes. First, Plaintiffs aver that they would like to post only a single price for their goods and services and charge more than that price to credit‐card customers, but are prohibited from doing so by Section 518.  (Five Points Academy: “It is not our intention to display two separate prices for each good and service that we offer, but rather to display—with roughly equal prominence—a single set of prices and the credit card surcharge amount.”); (Expressions Hair Design: “We would like to . . . characterize the price difference as  a 3% credit‐card surcharge on top of the listed cash price.”). In other words, Plaintiffs are seeking First Amendment protection for the kind of straightforward single‐sticker‐price scheme that Section 518 clearly prohibits. Second, Expressions Hair Design (the only Plaintiff to do so) currently posts two different prices for its services—one for credit‐card customers and one for cash customers—and fears being prosecuted for characterizing this price differential as a “surcharge,” or for telling its customers that credit costs “more.”

The court is clear that prices are not expressive.  It also rejects the argument that the statute actually bans an expressive label it disfavors ("credit-card discount") while permitting one a label it approves ("cash discount").  As the court explains,

Plaintiffs’ chief error—or, perhaps more accurately, the central flaw in their argument—is their bewildering persistence in equating the actual imposition of a credit‐card surcharge (i.e., a seller’s choice to charge an additional amount above the sticker price to its credit‐card customers) with the words that speakers of English have chosen to describe that pricing scheme (i.e., the term “credit‐card surcharge”).

Yet this was also the error of the district judge who applied the test from Central Hudson and concluded the NY law failed it.

The court also rejected the arguments that the NY statute is unconstitutional as applied to Expressions Hair Design's "dual price" scheme and an overbreadth challenge to other "hypothetical" pricing schemes.  The court found that the New York courts had not ruled on such questions and that Section 518 was "readily susceptible" to a narrowing construction that would eliminate the constitutional issues.  The court declined to certify the question to the New York Court of Appeals.

Finally, the court very succinctly resolved the due process vagueness challenge by finding that the statute had a "core meaning that can reasonably be understood."

Thus, sellers doing business in New York are again constitutionally prohibited from imposing credit card surcharges.  Cash discounts, however, remain permissible.

Prices

September 29, 2015 in Due Process (Substantive), First Amendment, Interpretation, Opinion Analysis | Permalink | Comments (0)

Tuesday, September 22, 2015

Second Circuit Grants Standing to Challenge NY's Criminalization of "Gravity Knives"

A gravity knife is “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device,” according to New York Penal Law §265.00 (5).  It is clear that having one is criminal possession of a weapon in the fourth degree, a misdemeanor punishable by no more than one year in prison.  It is less clear, at least according to the plaintiffs in Knife Rights, Inc. v. Vance, exactly what a gravity knife is: what if a person possesses a "common folding knife" that he is unable to open with a "wrist flick," but that someone else (presumably more talented) can open with a "wrist flick."? 

The Second Circuit's opinion in Knife Rights, Inc. v. Vance, however, is concerned not with the due process challenge to the New York law, but the Article III standing of the plaintiffs seeking to challenge it. 

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circa 1613 via

Almost two years after the district judge's opinion dismissing all plaintiffs, the Second Circuit has affirmed the lack of standing of the organizational plaintiffs, Knife Rights and Knife Rights Foundation, but reversed as to the individual plaintiffs, Copeland and Perez, as well as Native Leather, a retail knife store.

In applying the well-established test for Article III standing - - -(1)  ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likelihood that the injury ‘will be redressed by a favorable decision.’ - - - the Second Circuit disagreed with the district judge that the plaintiffs had not established an injury in fact. 

Indeed, the three individual plaintiffs had been prosecuted under the statute.  Copeland and Perez, an artist and an art dealer, both carry knives for their work.  Perez was stopped by law enforcement in 2010 in Manhattan for a

metal clip protruding from his pocket. Inquiry revealed the clip to be part of a Gerber brand common folding knife that Perez had purchased approximately two years earlier at Tent & Trail, an outdoor supply store in Manhattan. Plaintiffs assert that the charging officers were unable themselves to flick open Perez’s knife, but based on the possibility that someone could do so, they issued Perez a desk appearance ticket charging him with unlawful possession of a gravity knife.

Copeland was similarly stopped in 2010, but although he had previously shown his knife to NYC police officers to inquire about the legality of its possession and those officers were "unable to flick open the knife and so returned it to Copeland, advising that its possession was legal," when he was stopped, the officers were "able to open the knife by “grasping the knife’s handle and forcefully ‘flicking’ the knife body downwards” and, thus, issued Copeland a desk appearance ticket for violating the statute.

As to the store, Native Leather, it had entered into a deferred prosecution agreement with District Attorney Vance, which included the payment of fines and a "compliance program" to stop selling "gravity knives."

The Second Circuit easily found that the plaintiffs' alleged an imminent threat of prosecution.  The court rightly distinguished the controversial case of City of Los Angeles v. Lyons (1983) involving the police practice of choke-holds, by noting that the plaintiffs here seek to engage in the very conduct that is being subjected to criminalization.  The court denied the organization's standing by concluding that its monetary injury incurred by supporting persons prosecuted under the statute would not be adequately redressed by the injunctive relief sought in the complaint.  (The district court had denied leave to amend, which the Second Circuit affirmed).

The plaintiffs ability to move forward with the merits of their challenge to the New York statute criminalizing specific - - - or as alleged, not sufficiently specific - - - knives seems long overdue. 

September 22, 2015 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, September 17, 2015

Sixth Circuit Finds Standing in "Juggalo" Constitutional Challenge to Gang Designation

In its opinion in Parsons v. Department of Justice today, a panel of the Sixth Circuit reversed the district judge's dismissal of a complaint for lack of standing by individuals who identify as "Juggalos"  a group the FBI's National Gang Intelligence Center (NGIC) has identified as a "hybrid gang."  The individuals alleged that "they subsequently suffered violations of their First and Fifth Amendment constitutional rights at the hands of state and local law enforcement officers who were motivated to commit the injuries in question due to the identification of Juggalos as a criminal gang."

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As the court explained, Juggalos are fans of Insane Clown Posse, a musical group, and its record label, Psychopathic Records, who often wear or display Insane Clown Posse tattoos or insignia, as well as paint their faces. The complaint alleged various actions by law enforcement, including detentions and inference with performances, as a result of the gang designation.

The court found that while their allegations of chilled expression were insufficient to rise to the requisite "injury in fact" required under standing doctrine,

The Juggalos’ allegations that their First Amendment rights are being chilled are accompanied by allegations of concrete reputational injuries resulting in allegedly improper stops, detentions, interrogations, searches, denial of employment, and interference with contractual relations. Stigmatization also constitutes an injury in fact for standing purposes.  As required, these reputational injuries are cognizable claims under First Amendment and due process causes of action.

[citations omitted].  Thus, the court held that the injury in fact requirement was satisfied as to the First Amendment and due process claims.

As to causation, the court held that the Juggalos’ allegations "link" the gang report to their injuries "by stating that the law enforcement officials themselves acknowledged that the DOJ gang designation had caused them to take the actions in question."   Thus, at this initial stage of the case, the Juggalos’ allegations sufficed.

On the question of redressibility, the remedy sought included a finding that the gang report is invalid.  The court rejected the government's argument that such information about the Juggalos was available from other sources by stating that the test is not that the "harm be entirely redressed." "While we cannot be certain whether and how the declaration sought by the Juggalos will affect third-party law enforcement officers, it is reasonable to assume a likelihood that the injury would be partially redressed where, as here, the Juggalos have alleged that the law enforcement officers violated their rights because of" the government report.  The court seemingly found it pertinent that the DOJ's report gave the gang designation an impressive "imprimatur" of government authority.

As the Sixth Circuit made clear, the complaint remains subject to the motion to dismiss on other grounds, but this is an important victory for the Juggalo quest to remove its gang-identification.

September 17, 2015 in Due Process (Substantive), Fifth Amendment, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Thursday, September 10, 2015

Ninth Circuit Rejects Equal Protection and Due Process Challenges to California Sexual Predator Statute

In its opinion in Taylor v. San Diego County today, a panel of the Ninth Circuit rejected constitutional challenges to indefinite detention as a "sexually violent predator" raised in a habeas petition governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

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"Lunatic Asylum" circa 1831 via

The court's equal protection analysis was essentially that "sexually violent predators" are "not similarly situated" to other civilly committed offenders.  "California’s expressed legislative policy is to protect the public from the increased danger posed by sexually violent predators," and thus indefinite detention, rather than one year renewable periods of detention do not offend equal protection. 

Additionally, the court found that there was no due process problem with the California statute's requirement that the person (not the state) bears the burden of proving, by a preponderance of the evidence, that he no longer meets the definition of a sexually violent predator. 

The opinion is another example of the federal courts giving wide latitude to state civil commitment of sexual offenders.

September 10, 2015 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Equal Protection | Permalink | Comments (0)

Monday, August 24, 2015

Seventh Circuit Finds No Valid Constitutional Claims in School Bullying Lawsuit

Affirming the district court's grant of summary judgment in favor of the schools, the Seventh Circuit's brief opinion today in D.S. v. East Porter County Schools Corporation is an illustration of the difficulty of succeeding with constitutional claims based on bullying, even when claims of school officials participation are included.

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"Dealing with Bullies" artwork by Karbo via

In considering the Due Process claim, the unanimous Seventh Circuit panel began with the principle that the Due Process Clause "generally does not impose upon the state a duty to protect individuals from harm by private actors," predictably citing DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.(1989).  The court noted that there are two exceptions: special relationship and state-created danger.  The plaintiff argued that the school officials created the risk - - - or increased the risk - - - that she would be bullied, but the court found that the record did not support a finding that the school officials' conduct met the "requisite level of egregiousness" to satisfy the claim.

In considering the Equal Protection Clause claim, the court stated that the plaintiff must show that the schools "acted with a nefarious discriminatory purpose and discriminated against her based on her membership in a definable class."  Unlike the landmark Seventh Circuit case of  Nabozny v. Podlesny (7th Cir. 1996), which the court cites here, the plaintiff does not rely on sexual orientation or any other "protected class," but proceeded on a "class-of-one" theory.  The court found the plaintiff "failed to identify any similarly situated individuals who were treated differently." 

Without a valid Due Process Clause or Equal Protection Clause claim under the Fourteenth Amendment, the court found there was no underlying constitutional violation on which the plaintiff could proceed.

August 24, 2015 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0)

Wednesday, July 22, 2015

Eighth Circuit Finds North Dakota's "Heartbeat" Abortion Prohibition Unconstitutional

A unanimous panel of the Eighth Circuit, affirming the district judge, found that North Dakota's abortion regulation based on a "detectable heartbeat" is unconstitutional in its opinion in MKB Management Corp. v. Stenehjem. 

North Dakota's 2013 House Bill 1456, codified at N.D. Cent. Code § 14-02.1, mandates physicians determine whether the "unborn child" has a "detectable heartbeat," and if so, makes it a felony for a physician to perform an abortion.  The medical evidence submitted was that a "detectable heartbeat" occurs when a woman is about six weeks pregnant.

LogoThe court held that a woman's constitutional right to terminate a pregnancy before fetal viability is binding United States Supreme Court precedent, quoting language from Gonzales v. Carhart (2007): "Before viability, a State 'may not prohibit any woman from making the ultimate decision to terminate her pregnancy.'” 

However, the Eighth Circuit opinion noted that while it could not depart from the current state of protection of the right to abortion, the United States Supreme Court should reconsider the issue.  Essentially, the Eighth Circuit opinion argues that "developments in the unborn" should shift the balance to the ability of the states - - - and not the courts - - - to protect the unborn and assert the interest in "potential life."  The court's opinion also discussed the controversial findings that women who have had abortions suffer from emotional ills including regret, as well as repeating evidence that "some studies support a connection between abortion and breast cancer."  The court thus concludes, "the continued application of the Supreme Court’s viability standard discounts the legislative branch’s recognized interest in protecting unborn children."

Nevertheless, the opinion clearly finds the North Dakota law unconstitutional.

July 22, 2015 in Abortion, Courts and Judging, Due Process (Substantive), Family, Fundamental Rights, Gender, Opinion Analysis, Reproductive Rights | Permalink | Comments (0)

Wednesday, July 8, 2015

DC Circuit Upholds Federal Employment Application Limited to DC Area

As most law students learn, a state or locality cannot limit applicants for employment to its own residents because of a "right to travel."  But can the federal government limit applicants to those currently residing in the District of Columbia area?  In its opinion in Pollack v. Duff, the DC Court of Appeals has stated that the federal government can do so.

The case began with a 2009 job posting from the Administrative Office (AO) of the United States Courts for an attorney-advisor for a job in DC.  The posting provided that the AO would consider applications from any employee of the federal judiciary and from any other person who lived within the "Washington Metropolitan Area." 

Map_DC_metro_lgMalla Pollack, who represented herself in this litigation, is a former DC Court of Appeals clerk and accomplished legal scholar.  She applied for the position when she no longer worked for the judiciary and was living in Kentucky.  The  AO rejected her application because of her residency.  She protested based on residency, but was referred to the Fair Employment Practices System; she was then told that such complaints were limited to allegations of discrimination based on race, and other categories that did not include residency.  The DC Court of Appeals opinion notes that the AO's actions of referral and then dismissal essentially "played upon" Pollack.  The court might also have characterized the AO's argument of judicial review preclusion - - - because the Fair Employment Practices System is the exclusive means for deciding a claim of discrimination - - - as attempting to "play upon" the court.  Instead, the court merely gives the argument the brief discussion it merited.  

The court also notes that this is the second time the litigation reached the DC Court of Appeals.  In late 2012, the court reversed the dismissal of the complaint based on sovereign immunity, concluding that sovereign immunity does not bar a suit seeking specific relief for officers acting outside the bounds of constitutional authority.

On the merits of the right to travel argument, the court's opinion - - - authored by Senior Judge Douglas Ginsburg - - - untangles the various strands of the constitutional right to travel as might be applied to actions by the federal government.  The court first looks at Article IV §2, the privileges and immunities clause, but finds it protects state citizens against actions by other states, not by the federal government.  The court engages with the erudite originalist argument centered on James Iredell but nevertheless rejects it, noting that although the historical record is not "pellucid," reasoning in part that the

location of the Privileges and Immunities Clause in § 2 of Article IV supports the conclusion that it is directed at the states and not at the national government. Article IV is the “so-called States’ Relations Article.”  Section 2 of Article IV, in addition to the Privileges and Immunities Clause, included the Interstate Rendition Clause and the Fugitive Slave Clause, both of which were concerned with comity among the states.

The court's rejection of the equal protection claim does not rest on its inapplicability to the federal government, which "indisputably" applies to the federal government through the Fifth Amendment, including in its right to travel aspects.  Instead, the court essentially finds Pollack's claimed right too speculative:

If the AO had reviewed her application, then it might have offered her a job, which might have prompted her to move to the Washington area. Thus, Pollack might have been marginally more likely to travel to the Washington area but for the geographical limitation she is challenging. This effect upon Pollack’s willingness to travel, i.e., to exercise her right to travel, is “negligible” and does not warrant scrutiny under the Constitution.

Additionally, and more remarkably, the court rejects the argument that the AO created a classification that serves to penalize the right to travel by reasoning that the AO classification actually incentivizes the right to travel.  Distinguishing the AO classification from the durational residency requirement at issue in the landmark right to travel case of  Shapiro v. Thompson (1969), the court reasoned:

The AO’s geographical limitation is quite different, however, because it would not penalize Pollack if she decided to travel from Kentucky to the Washington area. To the contrary, the geographical limitation gives Pollack an incentive to travel to Washington in order to apply for a job with the AO that is open only to residents of the area. In other words, the geographical limitation burdens only Pollack’s decision not to travel interstate.

[emphasis in original].  The court thus did not consider what level of scrutiny should apply or whether any level would be satisfied, but simply held that the classification did not actually implicate the right to travel.  On the court's read, Pollack's only viable claim would be if she had been in DC and discouraged from leaving because she wanted to apply for the AO position; a claim the court notes that she did not make and would not have standing to raise on behalf of another person.

After a brief consideration of structural arguments, the court concludes by questioning the wisdom of the AO policy:

We agree with Pollack that it is difficult to comprehend why the AO refused to consider applicants who did not live in the Washington area but were willing to move there if they received an offer of employment. The AO points out that it receives applications from many qualified attorneys and it must limit the total number of applicants for certain positions so that it may focus upon those it is most interested in hiring. It is unclear, however, why the agency would use a geographical limitation to control the size of its applicant pool rather than criteria that are likely to be more closely correlated with job performance.

But the court decides that the AO did not violate Pollack's constitutional rights.  And given this decision - - - and the AO's protracted litigation on the issue - - - one can only assume that the AO will limit applicants by geography in future job postings.

July 8, 2015 in Cases and Case Materials, Due Process (Substantive), Equal Protection, Federalism, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Travel | Permalink | Comments (0)

Tuesday, July 7, 2015

Ninth Circuit Finds Constitutional Problems with Arizona's Anti-Ethnic Studies Law

In its opinion in Arce v. Douglas, a panel of the Ninth Circuit has found that Arizona's so-called anti-ethnic studies statute suffers from constitutional infirmities.

Recall that Arizona's HB 2281, which we noted when it was passed in 2010, codified as Arizona Revised Statute §15-112, provides:

A.  A school district or charter school in this state shall not include in its program of instruction any courses or classes that include any of the following:

1. Promote the overthrow of the United States government.
2. Promote resentment toward a race or class of people
3. Are designed primarily for pupils of a particular ethnic group.
4. Advocate ethnic solidarity instead of the treatment of pupils as individuals.

 In 2013, Judge Wallace  Tashima, who was sitting by designation as district judge, ruled on the First Amendment and Fourteenth Amendment challenges to the statute, substantially upholding the statute but finding subsection (3) was unconstitutional under the First Amendment, but severable from the remainder of the statute.

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image: Paisaje con el Iztaccíhuatl — obra de Gerardo Murillo, 1932, via

Today's Ninth Circuit opinion - - - authored by New York District Judge Jed Rakoff sitting by designation, and joined in full by Judge Noonan, with a partial concurrence and dissent by Judge Richard Clifton - - - affirmed the district court’s rulings that § 15- 112(A)(3) is unconstitutional in violation of the First Amendment but severable from the rest of the statute; that §§ 15-112(A)(2) and (A)(4) are not overbroad in violation of the First Amendment; and that §§ 15-112(A)(2) and (A)(4) are not vague in violation of the Due Process Clause.  However, the appellate panel found fault with the sua sponte grants of summary judgment - - - both on the equal protection claim and on a First Amendment viewpoint discrimination claim.

As to the equal protection claim, the Ninth Circuit concluded that subsections (3) and (4), while not facially discriminatory, raised constitutional issues because of evidence of their discriminatory purpose in enactment or enforcement.  The Ninth Circuit remanded the issue to be considered by the district court in light of the Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997) factors:

  • (1) the impact of the official action and whether it bears more heavily on one race than another;
  • (2) the historical background of the decision;
  • (3) the specific sequence of events leading to the challenged action;
  • (4) the defendant’s departures from normal procedures or substantive conclusions; and
  • (5) the relevant legislative or administrative history.

The majority discussed the factors and the evidence, finding that there was sufficient evidence to raise a genuine issue of material fact.  Judge Clifton dissented on the procedural posture of the remand, arguing that the district court should be able to fully consider summary judgment.

On the other remanded issue - - - the First Amendment viewpoint discrimination claim - - - the Ninth Circuit did not preclude summary judgment, noting that the district judge "did not even review the evidence" on this issue.

As to the unconstitutionality of subsection (3) as violative of the First Amendment,  the Ninth Circuit affirmed the district court.  Interestingly, the Ninth Circuit stated:

The very danger we perceive was corroborated, at oral argument, when we asked counsel for defendants whether the statute could be found to prohibit a public school course in San Francisco on the topic of Chinese history that was open to all students but was designed in consideration of the substantial Chinese and Chinese American student population there that might benefit from a greater understanding of its history. Defendants asserted that the course could be found in violation. As indicated by this example, subsection (A)(3) threatens to chill the teaching of ethnic studies courses that may offer great value to students— yet it does so without furthering the legitimate pedagogical purpose of reducing racism.

However, the Ninth Circuit affirmed the district court's finding that the other sections of the statute survived the First Amendment challenges rooted in curricular decisions.

Thus, on remand, the state will need to show that its so-called anti-ethnic studies statute was not actually anti-people of certain ethnic identities.

July 7, 2015 in Due Process (Substantive), Equal Protection, First Amendment, Opinion Analysis, Race | Permalink | Comments (0)

Tuesday, June 30, 2015

Daily Read: Corey Robin on Dignity (and Whitney Houston)

Over at his eponymous blog, CUNY-Brooklyn Political Science professor Corey Robin has an interesting take on the controversial passage from Justice Thomas's dissent in Obergefell criticizing the "dignity" rationale of Kennedy's opinion for the Court by stating in part that slaves" did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. " 

Robins's post, "From Whitney Houston to Obergefell: Clarence Thomas on Human Dignity," is worth a read, and even worth a listen if you are so inclined.

 

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June 30, 2015 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fundamental Rights, Race, Reconstruction Era Amendments, Sexual Orientation, Sexuality, Thirteenth Amendment, Web/Tech | Permalink | Comments (0)

Friday, June 26, 2015

Court Decides Fourteenth Amendment Requires States to License Same-Sex Marriage

In a closely-divided opinion, with the majority written by Justice Kennedy, the Court has decided that the Fourteenth Amendment requires states to license same-sex marriages in Obergefell v. Hodges.   The opinion rests on both due process and equal protection grounds.  The majority opinion joined by Ginsburg, Breyer, Sotomayor, and Kagan - - - there are no concurring opinions - - - is less than 30 pages, plus 2 appendices including the citations of same-sex marriage opinions.  Each of the four dissenting Justices - - - Chief Justice Roberts and Justices Scalia, Thomas, and Alito - - - wrote a separate dissenting opinion, with some joinders by other Justices. 

The decision that the Fourteenth Amendment requires states to license same-sex marriages renders the second certified question regarding recognition irrelevant, as the discussion during oral arguments made clear.

Recall that the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans.   There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.

 

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[image Donkey Hotey]

On the due process issue, Kennedy's opinion for the Court concludes that the right to marry is fundamental because:

  • the right to personal choice regarding marriage is inherent in the concept of individual autonomy, relying on Loving and Lawrence;
  • it supports a two-person union unlike any other in its importance to the committed individuals, relying on Grsiwold, Rurner v. Safely, and Lawrence;
  • to safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education, relying on Pierce v. Society of Sisters and Windsor;
  • Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order, relying on Maynard v. Hill (1888).
Regarding equal protection, The Court does not articulate a standard for sexual orientation, but discusses the interlocking nature of the constitutional safeguards, relying on Loving, Zablocki v. Redhail, as well as the Lawrence.
 
The Court's opinion does address the "religious liberty" conflict of rights argument:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same- sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

In dissent, Chief Justice Roberts - - - who some thought might join the majority and in a rare performance read from his dissent on the bench - - - emphasized that limited nature of judicial review and the power of the Court, concluding that the majority's opinion is an "extraordinary step" and predicting that because it is a decision of "five lawyers" this will make the "dramatic social change that much more difficult to accept."
 
The majority bases its conclusion that same-sex marriage is a fundamental right on "four principles and traditions": (1) right to person choice in marriage is "inherent in the concept of individual autonomy"; (2) "two-person union unlike any other in its importance to the committed individuals"; (3) marriage safeguards children and families; (4) marriage is a keystone to our social order. - See more at: http://live.scotusblog.com/Event/Live_blog_of_opinions__June_26_2015#sthash.OLg4SIRd.dpuf

June 26, 2015 in Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Opinion Analysis, Supreme Court (US) | Permalink | Comments (1)

Wednesday, June 17, 2015

Second Circuit Gives Detainee Case Against Ashcroft, Mueller the Go-Ahead

The Second Circuit ruled today that a civil rights case by former alien detainees against former AG John Ashcroft, former FBI Director Robert Mueller, former INS Commissioner James Zigler, and officials at the Metropolitan Detention Center can move forward.

The ruling is not a decision on the merits, but instead says that the bulk of the plaintiffs' case against the officials is not dismissed and can proceed to discovery.

Still, the ruling is significant, to say the least. It means that officials at the highest level of the DOJ will have to answer in court for their actions that led directly to the wrongful detention and mistreatment of aliens who were mistakenly swept up in the 9/11 investigation, even though, as the court said, "they were unquestionably never involved in terrorist activity."

The case, Turkmen v. Ashcroft, over thirteen years old, challenges the defendants' moves that resulted in the detention and mistreatment of aliens in the post-9/11 investigation, even though they had nothing to do with the 9/11 attacks or terrorist activities. In particular, the plaintiffs claimed that they were detained between three and eight months, without individualized suspicion and because of their race, religion, ethnicity, or national origin, and subjected to various forms of mistreatment.

The plaintiffs alleged that the DOJ defendants took certain actions that resulted in their detention and unlawful treatment, with knowledge that the plaintiffs were wrongfully detained and mistreated. They also alleged that the MDC defendants took official actions that led to their abuse and knew about certain "unofficial abuse."

The defendants moved to dismiss for failure to state a claim, on qualified immunity grounds, and, for some claims, that Bivens did not extend a cause of action. The district court dismissed all claims against the DOJ defendants and some claims against the MDC defendants.

The Second Circuit (mostly) reversed and allowed the case to move forward. The court said that the plaintiffs adequately pleaded their constitutional claims (and met the Iqbal pleading standard) that the DOJ and MDC defendants acted directly to violate the plaintiffs' constitutional rights. Key to the ruling was the plaintiffs' carefully pleaded complaint, which incorporated most of two reports of the DOJ's Office of Inspector General, helping plaintiffs to meet the plausibility test. Also key was the plaintiffs' allegations that the DOJ defendants received regular information on the post-9/11 investigation, including detainees, and that they ordered and implemented certain policies and took certain actions that resulted directly in the plaintiffs' wrongful detention.

Along the way, the court ruled that the plaintiffs had Bivens claims (except for their free exercise claim), even though the DOJ defendants didn't argue Bivens on appeal. The court also ruled that the defendants weren't entitled to qualified immunity, because the law on pretrial detention and mistreatment was clear at the time.

The court concluded:

The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy.

Holding individuals in solitary confinement twenty-three hours a day with regular strip searches because their perceived faith or race placed them in the group targeted for recruitment by al Qaeda violated the detainees' constitutional rights. To use such a broad and general basis for such severe confinement without any further particularization of a reason to suspect an individual's connection to terrorist activities requires certain assumptions about the "targeted group" not offered by Defendants nor supported in the record. It assumes that members of the group were already allied with or would be easily converted to the terrorist cause, until proven otherwise. Why else would no further particularization of a connection to terrorism be required? Perceived membership in the "targeted group" was seemingly enough to justify extended confinement in the most restrictive conditions available.

Judge Reena Raggi dissented.

June 17, 2015 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Fifth Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases | Permalink | Comments (0)

Monday, June 15, 2015

Does Immigration Marriage Case Foreshadow Same-Sex Marriage Case?

In United States Supreme Court's fragmented and closely divided decision in Kerry v. Din, the majority rejected the procedural due process argument of a naturalized American citizen to an explanation of the reasons supporting a denial of a visa to her noncitizen husband.  Justice Scalia, writing for the plurality and joined by Thomas and Chief Justice Roberts, concluded that she had no cognizable liberty interest attributable to her marriage.  Justice Kennedy, joined by Alito, would not reach the liberty interest issue because the process here was all that was due.  Justice Breyer, dissenting, and joined by Ginsburg, Sotomayor, and Kagan, would affirm the Ninth Circuit and find that she had a cognizable liberty interest and that more process was due in the form of a more precise and factual explanation.

So what might this mean for Obergefell?  Most obviously, the dissenting opinion by Breyer, and joined by Ginsburg, Sotomayor, and Kagan, articulates an expansive liberty interest in marriage under the Due Process Clause that could be easily imported into Obergefell.  On Justice Kennedy's concurrence, joined by Alito, the clear signal is that Justice Scalia's refusal to recognize a liberty interest in marriage is not one to which they are subscribing - - - in this case.  Given that Justice Kennedy, as author of the Court's opinions Windsor, Lawrence, and Romer v. Evans, is being closely watched as potential author of an opinion in favor of Obergefell, there is nothing in Din that would mitigate that judgment. As for the plurality, Justice Scalia's derogation of substantive due process has a familiar ring that might be echoed in his opinion in Obergefell, with an emphasis on history.  While Justice Thomas is widely expected to agree with Scalia's position, does the Chief Justice's joining of Scalia's opinion in Kerry v. Din signal a disapproval of recognizing any liberty interest in marriage?  Perhaps.  But perhaps not.  Consider this:

Unlike the States in Loving v. Virginia, 388 U. S. 1 (1967), Zablocki v. Redhail, 434 U. S. 374 (1978), and Turner v. Safley, 482 U. S. 78 (1987), the Federal Govern­ment here has not attempted to forbid a marriage. Although Din and the dissent borrow language from those cases invoking a fundamental right to marriage, they both implicitly concede that no such right has been infringed in this case. Din relies on the “associational interests in marriage that necessarily are protected by the right to marry,” and that are “presuppose[d]” by later cases estab­lishing a right to marital privacy.

Indeed, under this view, as the Court made clear in Zablocki, there must be a "direct and substantial" interference with marriage in order for there to be a liberty interest.  The Court in Zablocki distinguished Califano v. Jobst, 434 U.S. 47 (1977) - - - which the Court in Din does not cite - - - which found no constitutional infirmity with altering social security benefits upon marriage.  In short, the marriage was not "forbidden," it was simply subject to certain regulations in another the complex social security scheme, not unlike the complex immigration scheme.

So for those who might attempt to predict the various positions of the Justices in Obergefell based on Kerry v. Din, there is certainly much "play."

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Henri Rousseau, "The Wedding Party," circa 1905, via

June 15, 2015 in Courts and Judging, Current Affairs, Due Process (Substantive), Family, Gender, Recent Cases, Sexual Orientation, Sexuality, Supreme Court (US), Theory | Permalink | Comments (0)