Tuesday, April 15, 2014
In its opinion National Legal Services v. India, the Supreme Court of India has recognized the constitutional rights of transgender persons, including the right not to be denominated as either "male" or "female."
The opinion by K.S. Radhakrishnan begins with an invocation of the "trauma, agony and pain which the members of Transgender community undergo" but rather quickly also invokes the cultural roots and importance of the community: "TG Community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong historical presence in our country in the Hindu mythology and other religious texts."
The judgment rests on an interpretation of several provisions of the Constitution of India, including Article 14 (equality before law); Article 15 (prohibition of discrimination on the basis of various grounds, including sex); Article 16 (equality of opportunity in public employment, including sex); Article 19 (including freedom of expression); and Article 21 (protection of life and personal liberty). The judgment engaged in some originalist reasoning that broadly interpreted "sex" to include sex-stereotyping:
Constitution makers, it can be gathered, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders. Both gender and biological attributes constitute distinct components of sex. Biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes include one’s self image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of ‘sex’ under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female.
Given this interpretation, the Court not suprisingly ruled
We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.
The Court has some interesting discussions of dress and grooming as an aspect of gender which included references to US cases and is further discussed here.
The Court also specifically disavowed any relationship between its present judgment in National Legal Services v. India and the controversial opinion Koushal v. NAZ Foundation decided in December in which the Court - - - or as the Court states here "A Division Bench of this Court" reversed the 2009 decision of the Delhi High Court that §377 of the Indian Penal Code was unconstitutional under the India Constitution and upheld India's sodomy law as constitutional:
we express no opinion on it [Kousal] since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation.
In a separate judgment, A.K. Sikiri did not mention the sodomy decision in Koushal v. Naz Foundation, but the judgment's expansive rhetoric could be read as an implicit disagreement with that decision as well as serving as a further butressing of today's judgment. The concurring opinion elaborated on the importance of TG persons and communities to India's culture. It referenced Immanuel Kant, John Rawls, Amartya Sen as providing the "jurisprudential basis for doing justice to the Vulnerable Groups which definitely include TGs." It explicitly stated the "dynamic" and "living character" of the Constitution and its interpretation. It considered judicial review in the context of democracy (including, implicitly, "sexual democracy") and decidedly opined that it is the role of the judiciary to "ensure access to justice to the marginalized section of the society," and that undoubtedly "TGs belong to the unprivileged class which is a marginalized section."
The judgment not only requires the government to recognize a "third gender" and to grant "legal recognition of their gender identity such as male, female or as third gender," but also directs the government to take positive steps in education, health provisions, and "seriously address" various problems.
April 15, 2014 in Comparative Constitutionalism, Courts and Judging, Due Process (Substantive), Equal Protection, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)
Monday, April 14, 2014
In the widely anticipated opinion in Henry v. Himes, Judge Timothy Black has ruled that Ohio Const. Art. XV, § 11 and Ohio Rev. Code § 3101.01(C) denying legal recognition to the marriages of same-sex couples validly entered in other jurisdictions violates the Fourteenth Amendment.
Recall that Judge Black previously issued an opinion in Obergefell v. Kasich with a similar conclusion, although that opinion was limited to the particular plaintiffs. Judge Black's preliminary injunction ruling in Obergefell was the first post-Windsor decision on same sex marriage, and interestingly used some of Justice Scalia's dissenting language to support his reasoning.
While Obergefell involved a person who was dying, the plaintiffs in Henry are same-sex couples expecting children or with children. The four plaintiff couples, who entered into valid marriages in other jurisdictions, seek to have the names of both parents recorded on their children’s Ohio birth certificates and a declaration that Ohio’s refusal to recognize valid same-sex marriages is unconstitutional. Judge Black relied heavily on his previous rationale in Obergefell, and again found that while marriage is a fundamental right, the Supreme Court has not explicitly recognized it as such, and "the balancing approach of intermediate scrutiny is appropriate in this similar instance where Ohio is intruding into – and in fact erasing – Plaintiffs’ already- established marital and family relations." Again, Judge Black footnotes Professor Steve Sanders work on the liberty interest in having one's marriage recognized.
In the equal protection analysis, Judge Black does advance a distinct rationale for "heightened scrutiny" given that the children's birth certificates are involved. He writes that the "Supreme Court has long held that disparate treatment of children based on disapproval of their parents’ status or conduct violates the Equal Protection Clause," citing Plyler v. Doe, 457 U.S. 202 (1982). But, as in Obergefell, he also explicitly found that even if rational basis were applied, the Ohio provisions failed to satisfy it.
On the last page of Judge Black's opinion is the text of a song, "Happy Adoption Day" (1992). For some, this will seem appropriate and celebratory. For others, this will seem indecorous and treacly. Judge Black's previous statements have displeased at least one state representative - - - who has introduced a resolution in the Ohio legislature calling for the House of Representatives of Congress to initiate impeachment proceedings.
Thursday, March 27, 2014
A panel of the Fifth Circuit upheld the restrictive abortion law of Texas in its opinion in Planned Parenthood of Texas Surgical Providers v. Abbott.
Authored by controversial conservative Judge Edith Jones, the unanimous panel opinion upholds positions of equally controversial Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis. The district judge's decision had enjoined the "admitting provisions of HB 2 as unconstitutional:
A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services
The Fifth Circuit quickly stayed the injunction. In today's panel opinion, Judge Jones wrote that the the district judge's opinion "applied the wrong legal standards under rational basis review and erred in finding that the admitting–privileges requirement amounts to an undue burden for a 'large fraction' of the women that it affects."
As to rational basis, Judge Jones highlighted the highly deferential standard, its place in a democracy, its practicality (if the legislature doesn't think a law is working, it can change it), and its application to HB2:
Viewed from the proper perspective, the State’s articulation of rational legislative objectives, which was backed by evidence placed before the state legislature, easily supplied a connection between the admitting–privileges rule and the desirable protection of abortion patients’ health.
As to the undue burden, Judge Jones noted that the Supreme Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey,
counsels against striking down a statute solely because women may have to travel long distances to obtain abortions. The record before us does not indicate that the admitting–privileges requirement imposes an undue burden by virtue of the potential increase in travel distance in the Rio Grande Valley.
The narrow exception of the Fifth Circuit's reversal if that the admitting privileges requirement "may not be enforced against abortion providers who timely applied for admitting privileges under the statute but are awaiting a response from the hospital."
Monday, March 24, 2014
Can a government criminalize the recording of conversations absent consent without violating the First Amendment, or perhaps the Due Process Clause?
Both cases relied upon ACLU v. Alvarez, in which the Seventh Circuit enjoined the statute from being applied to a Chicago police accountability program.
In Clark, the Illinois Supreme Court held that 720 ILCS 5/14-2(a)(1)(A), the eavesdropping statute, violated the First Amendment's overbreadth doctrine "because a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep." The court recognized the ubiquity of smartphones and other recording devices.
Importantly for the court, the statute criminalized a "whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private." It gave these examples:
- a loud argument on the street;
- a political debate in a park;
- the public interactions of police officers with citizens (if done by a member of the general public); and
- any other conversation loud enough to be overheard by others whether in a private or public setting.
Although the opinion in Clark is a brief 9 pages, it's substantial and well-reasoned.
Equally brief and well-reasoned, although somewhat more complex, is the companion opinion in Melongo. The state argued that Melongo's First Amendment claim was not cognizable on appeal, unlike the Due Process claim, and that the constitutional claims were inconsistent with her defense at trial. Nevertheless, the court found that the statutory provision was unconstitutional under the First Amendment for the same rationale as in Clark. Melongo also raised a constitutional claim to the "publishing provision" of the statute, which further criminalizes the "publishing" of any recording made without consent. The court similarly found this provision overbroad.
It will be interesting to see how the Illinois legislature responds.
Friday, March 21, 2014
Following the trend which we most recently discussed here and here, Senior United States District Judge for the Eastern District of Michigan, Bernard Friedman, declared the state's same-sex marriage ban unconstitutional in his opinion today in DeBoer v. Snyder.
At issue was Michigan's state constitutional amendment, Mich. Const. Art. I, § 25, which the court referred to as the Michigan Marriage Amendment, MMA, passed by voter referendum in November 2004. The judge held a trial limiting the issue to whether the MMA "passed rational basis review" under the Fourteenth Amendment and held that it did not because it violated the Equal Protection Clause. The court stated it therefore did not reach the Due Process Clause question.
The state proffered the by now familiar government interests to satisfy the required "legitimate" government interest:
- providing an optimal environment for child rearing;
- proceeding with caution before altering the traditional definition of marriage; and
- upholding tradition and morality.
In evaluating each of these, the judge reached the by now familiar conclusions. Judge Friedman discussed the evidence at trial, holding that there was "no logical connection between banning same- sex marriage and providing children with an 'optimal environment' or achieving 'optimal outcomes;'" that the "wait and see" approach did not satisfy the legitimate government interest standard; and finally that upholding tradition and morality likewise did not satisfy the legitimate government interest standard, citing several of the recent cases that have held likewise.
Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. Having failed to establish such an interest in the context of same-sex marriage, the MMA cannot stand.
The judge also rejected the argument that the MMA's status as a constitutional amendment prompted by voter referendum was relevant, quoting the famous language from the 1943 flag-salute First Amendment case of West Virginia Bd. of Ed. v. Barnette: the "very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy" and "to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."
Judge Friedman's decision is closely and carefully reasoned, although it closes with a rhetorical paragraph that labels the opinion "a step in the right direction."
The Judge enjoined the enforcement of the same-sex marriage ban and unlike some other judges, he did not order a stay.
[image: Map of Michigan circa 1836 via]
Saturday, March 15, 2014
In an opinion in Edwards v. Beck, a federal judge permanently enjoined portions of Arkansas' Act 301, which imposed regulations on the performance of abortions in Arkansas.
Judge Wright considered the Act's three provisions: a heartbeat testing requirement; a disclosure requirement; and a ban on abortions when a fetal heartbeat is detected and the fetus has reached twelve weeks’ gestation.
She found that the 12 week ban prohibits pre-viability abortions and "thus impermissibly infringes a woman’s Fourteenth Amendment right to elect to terminate a pregnancy before viability."
Yet Judge Wright concluded that the disclosure and heartbeat testing could be severed from the unconstitutional 12 week provision, because they are
independently capable of furthering the stated purpose of Act 301, to protect unborn children, and that they are severable from the unconstitutional twelve-week ban and the requirement of license revocation for a physician who performs an abortion banned under the Act. The State, from the inception of a pregnancy, maintains its own interest in protecting the life of a fetus that may become a child, and the Supreme Court has recognized that the disclosure of truthful information about fetal development is relevant to a woman’s decision- making process and is rationally related to the State’s interest in protecting the unborn.
The judge's analysis on the severability issue is relatively slight and she could easily have reached the opposite conclusion under her articulated rationales. But she decided that only the ban on 12 week abortions was declared unconstitutional.
Thursday, March 6, 2014
In its unanimous opinion in Commonwealth v. Robertson, the Supreme Judicial Court of Massachusetts avoided the constitutional challenge to the state's statutory prohibition of "secretly photographing or videotaping a person 'who is nude or partially nude,'" G.L. c. 272, § 105 (b ), by interpreting the statute not to apply to taking photographs at the areas under women's skirts ("upskirting").
The defendant had argued that if § 105 (b ) "criminalizes the act of photographing a fully clothed woman under her skirt while she is in a public place, it is both unconstitutionally vague and overbroad," but because the court "concluded that § 105 (b ) does not criminalize the defendant's alleged conduct," it did not reach the constitutional questions.
Yet, as in many cases, the court's statutory interpretation does occur in the shadow of the constitutional challenge. The court reasoned that the statute "does not penalize the secret photographing of partial nudity, but of "a person who is ... partially nude" (emphasis in original). Courts have long struggled with definitions of "nudity" - - - recall the United States Supreme Court's recent foray into this area in FCC v. Fox with an oral argument that drew attention to the nude buttocks in the courtroom decor.
Additionally, the court reasoned that the statutory element of in "such place and circumstance [where the person] would have a reasonable expectation of privacy in not being so photographed" did not cover the alleged acts of photography in a public place, such as the Massachusetts Bay Transportation Authority (MBTA) trolley. The court rejected the Commonwealth's argument emphasizing the "so" in "so photographed" - - - that "because a female MBTA passenger has a reasonable expectation of privacy in not having the area of her body underneath her skirt photographed, which she demonstrates by wearing the skirt" by interpreting "so" as simply referential.
The court concluded that at the
core of the Commonwealth's argument . . . is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but § 105 (b ) in its current form does not address it.
And the court noted that in the past legislative session proposed amendments to § 105 were before the Legislature that appeared to attempt to address precisely the type of "upskirting" conduct at issue in the case. Given the court's opinion in Robertson, this issue will most likely be again before the Massachusetts legislature.
Monday, March 3, 2014
There have been a spate of federal judges declaring state constitutional or statutory provisions banning recognition of same-sex marriage unconstitutional under the Fourteenth Amendment:
De Leon v. Perry, from the Western District of Texas;
Bostic v. Rainey from the Eastern District of Virginia;
Bourke v. Beshear from the Western District of Kentucky;
Bishop v. United States from the Northern District of Oklahoma;
Obergefell v. Wymyslo from the Southern District of Ohio;
Kitchen v. Herbert, from the District of Utah;
Lee v. Orr applicable only to Chicago.
Other than Lee v. Orr, in which the judge was only ruling on an earlier start date for same-sex marriage than the Illinois legislature had declared, the judges in each of these cases relied on Justice Scalia's dissenting opinions.
In "Justice Scalia’s Petard and Same-Sex Marriage," over at CUNY Law Review's "Footnote Forum," I take a closer look at these cases and their relationship to Shakespeare's famous phrase from Hamlet.
March 3, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Sexual Orientation, State Constitutional Law, Supreme Court (US), Theory, Weblogs | Permalink | Comments (0) | TrackBack (0)
Saturday, March 1, 2014
In her op-ed in the NYT, entitled "Renting Judges for Secret Rulings," ConLawProf Judith Resnik (pictured below) asks "Should wealthy litigants be able to rent state judges and courthouses to decide cases in private and keep the results secret?," and quickly adds that the answer should be an "easy no."
But she argues that the recent Delaware legislation - - - declared unconstitutional by a divided panel of the Third Circuit as we previously discussed - - - threatens to subvert access to the courts should Delaware be successful in its petition for certiorari.
The Delaware legislation is a dramatic example of rich litigants using their resources to close court systems that taxpayers support and constitutions require. But the problem goes beyond Delaware. To honor constitutional commitments that “all courts shall be open,” the court should refuse the Delaware judges’ request, and Congress should restore rights to public courts for consumer and employment disputes.
Resnik's excellent work on "democratic courtrooms" makes her the perfect scholar to address the possibility of anti-democratic courtrooms.
[image of Judith Rensik via]
Friday, February 28, 2014
In its opinion in Dariano v. Morgan Hill Unified School District, the Ninth Circuit rejected a claim by students that their constitutional rights were violated when school officials banned their American flag clothing during a Cinco de Mayo celebration.
Affirming the district judge, the panel applied Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) to the First Amendment claims, distinguishing Tinker:
In contrast to Tinker, in which there was “no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone,” id., there was evidence of nascent and escalating violence at Live Oak. On the morning of May 5, 2010, each of the three students was confronted about their clothing by other students, one of whom approached student M.D. and asked, “Why are you wearing that? Do you not like Mexicans[?]” Before the brunch break, [Principal] Rodriguez learned of the threat of a physical altercation. During the break, Rodriguez was warned about impending violence by a second student. The warnings of violence came, as the district court noted, “in [the] context of ongoing racial tension and gang violence within the school, and after a near-violent altercation had erupted during the prior Cinco de Mayo over the display of an American flag.” Threats issued in the aftermath of the incident were so real that the parents of the students involved in this suit kept them home from school two days later.
Moreover, the school did not "embargo all flag-related clothing," but "distinguished among the students based on the perceived threat level" and allowed "two students to return to class when it became clear that their shirts were unlikely to make them targets of violence."
The court also rejected the students' equal protection claim, which seemed to rest upon viewpoint discrimination, and indeed the court again relied upon Tinker. The court further rejected the facial due process challenge to the school dress code, which prohibited clothing that “indicate[s] gang affiliation, create[s] a safety hazard, or disrupt[s] school activities," finding that it need not be more specific:
It would be unreasonable to require a dress code to anticipate every scenario that might pose a safety risk to students or that might substantially disrupt school activities. Dress codes are not, nor should they be, a school version of the Code of Federal Regulations. It would be equally unreasonable to hold that school officials could not, at a minimum, rely upon the language Tinker gives them.
While school dress codes and their application can raise grave constitutional concerns, the context as the court explains it here seems to warrant the tailored of school officials, American flag or not.
[image: American Flag clothing patch from "Easy Rider" via]
Wednesday, February 26, 2014
Judge Orlando Garcia's opinion in DeLeon v. Perry issuing a preliminary injunction against a state constitutional same-sex marriage ban because it is most likely unconstitutional under the Fourteenth Amendment today marks the sixth time in recent weeks that a federal judge has reached such a conclusion.
Indeed, Judge Garcia's opinion relies upon these previous opinions in Bostic v. Rainey from the Eastern District of Virginia, Bourke v. Beshear from the Western District of Kentucky; Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah, as well as upon the Supreme Court's opinion in United States v. Windsor declaring §3 of DOMA unconstitutional.
Judge Garcia's 38 page opinion begins with an extensive discussion of the parties, the statutory and state constitutional scheme in Texas barring same sex marriage, and even a discussion of the "national debate on same sex marriage beginning with the Hawai'i Supreme Court's 1993 decision in Baehr v. Lewin. As a preliminary matter, he not only analyzes the standing issue, but also the United States Supreme Court's summary disposition in Baker v. Nelson, 409 U.S. 810 (1972), which would seem to have been rendered irrelevant by Windsor.
On the merits - - - or more properly, on the "likelihood to succeed on the merits" prong of the preliminary judgment analysis - - - Judge Garcia's analysis is well-crafted and closely reasoned.
Regarding equal protection, his analysis of the contention that sexual orientation merits heightened scrutiny is well-done, although he ultimately concludes that it is unnecessary to apply heightened scrutiny because "Texas' ban on same-sex marriage fails even under the most deferential rational basis level of review." He concludes that the two government interests that the State proffers as supporting the same sex marriage ban as failing rational basis review. First, the state's desire "to increase the likelihood that a mother and a father will be in charge of childrearing" is reinterpreted simply as childrearing. As such, while the interest may be legitimate, it is not rationally served by banning same-sex marriage. Second, the state's desire "to encourage stable family environments for responsible procreation" is similarly not served. Third, Judge Garcia discusses "tradition," that while it was not explicitly advanced by the State, undergirds many of the State's arguments. Here Judge Garcia finds that the interest is not legitmate.
In his analysis of due process, Judge Garcia, like Judge Allen in Bostic, finds marriage to be a fundamental right. Judge Garcia marshalls the Supreme Court precedent thusly:
The State does not dispute that the right to marry is one of the fundamental rights protected by the United States Constitution. Oral Arg. Tr. p. 37 (arguing Texas marriage law does not violate Plaintiffs' "fundamental" right to marry). See, e.g., Zablocki v. Redhail, 434 U.S. 374, 384 (1978) ("[D]ecisions of this Court confirm that the right to marry is of fundamental importance for all individuals."); United States v. Kras, 409 U.S. 434, 446 (1973) (concluding the Court has come to regard marriage as fundamental); Loving v. Virginia, 388 U.S. 1, 12 (1967) ( The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."); Skinner v. Okla. ex. rel. Williamson, 316 U.S. 535, 541 (1942) (noting marriage is one of the basic civil rights of man fundamental to our existence and survival); Maynard v. Hill, 125 U.S. 190, 205, 211 (1888) (characterizing marriage as "the most important relation in life" and as "the foundation of the family and society, without which there would be neither civilization nor progress.").
He thus applies strict scrutiny and the same-sex marriage ban fails.
Judge Garcia also considers the failure to recognize an out of state same-sex marriage, as required by Texas law, and subjects this to rational basis, and analogizing to Windsor, finds this also easily fails.The opinion does seemingly address a popular audience, but even here Judge Garcia grounds his rhetoric in precedent:
Today's Court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United States Constitution and Supreme Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution. Furthermore, Supreme Court precedent prohibits states from passing legislation bom out of animosity against homosexuals (Romer), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence), and prohibits the federal government from treating state-sanctioned opposite-sex marriages and same-sex marriages differently (Windsor).
Judge Garcia stayed his opinion, mindful of the stay in Herbert v. Kitchen. Thus until the Fifth Circuit hears the case - - - or another decision - - - same sex marriages will not be occurring in Texas.
[image: map of Texas circa 1866 via]
February 26, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Thursday, February 20, 2014
Largely reversing a district judge's opinion that had found various provisions of Pennyslvania's Funeral Director Law unconstitutional on various grounds, the Third Circuit opinion in Heffner v. Murphy upholds the law except for its restriction on the use of trade names as violative of the First Amendment.
One key to the panel's decision is that it surmised that the district judge's conclusions regarding the constitutionality of Pennsylvania's Funeral Director Law (FDL), enacted in 1952, "stem from a view that certain provisions of the FDL are antiquated in light of how funeral homes now operate." But, the Third Circuit stated, that is not a "constitutional flaw."
The challenged statutory provisions included ones that:
(1) permit warrantless inspections of funeral establishments by the Board;
(2) limit the number of establishments in which a funeral director may possess an ownership interest;
(3) restrict the capacity of unlicensed individuals and certain entities to hold ownership interests in a funeral establishment;
(4) restrict the number of funeral establishments in which a funeral director may practice his or her profession;
(5) require every funeral establishment to have a licensed full-time supervisor;
(6) require funeral establishments to have a “preparation room”;
(7) prohibit the service of food in a funeral establishment;
(8) prohibit the use of trade names by funeral homes;
(9) govern the trusting of monies advanced pursuant to pre-need contracts for merchandise; and
(10) prohibit the payment of commissions to agents or employees.
The constitutional provisions invoked - - - and found valid by the district judge - - - included the Fourth Amendment, the "dormant" commerce clause, substantive due process, the contract clause, and the First Amendment, with some provisions argued as violating more than one constitutional requirement.
In affirming the district judge's finding that the trade names prohibition violated the First Amendment, the Third Circuit applied the established four part test from Central Hudson Gas & Electric Corp. v. Public Service Commission regarding commercial speech and found:
The restrictions on commercial speech here are so flawed that they cannot withstand First Amendment scrutiny. Indeed, the District Court correctly identified the pivotal problem concerning the FDL’s proscription at Central Hudson’s third step: by allowing funeral homes to operate under predecessors’ names, the State remains exposed to many of the same threats that it purports to remedy through its ban on the use of trade names. A funeral director operating a home that has been established in the community, and known under his or her predecessor’s name, does not rely on his or her own personal reputation to attract business; rather, the predecessor’s name and reputation is determinative. Nor does a funeral home operating under a former owner’s name provide transparency or insight into changes in staffing that the Board insists is the legitimate interest that the State’s regulation seeks to further.
ConLawProfs looking for a good review or even a possible exam question, might well take a look at the case. It also seems that the Pennsylvania legislature might well take a look at its statutory scheme, which though largely constitutional, does seem outdated.
February 20, 2014 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Dormant Commerce Clause, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Friday, February 14, 2014
Judge Arenda Wright Allen's opinion in Bostic v. Rainey concludes that Virginia's statutory and state constitutional provisions banning same-sex marriages or their recognition violates the Fourteenth Amendment's Due Process and Equal Protection Clauses.
Judge Allen's due process analysis begins by declaring that there "can be no serious doubt that in America the right to marry is a rigorously protected fundamental right" and she therefore subjects Virginia's marriage laws to strict scrutiny. Given this formulation, she easily concludes that the state's proferred interests of tradition, federalism, and "responsible procreation" coupled with "optimal child rearing" are not satisfactory. The analysis often reverts to the language of lesser scrutiny, including this explicit statement regarding the procreation/child-rearing interest:
This rationale fails under the applicable strict scrutiny test as well as a rational-basis review. Of course the welfare of our children is a legitimate state interest. However, limiting marriage to opposite-sex couples fails to further this interest. Instead, needlessly stigmatizing and humiliating children who are being raised by the loving couples targeted by Virginia’s Marriage Laws betrays that interest.
Virginia’s Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. . . .
The legitimate purposes proffered by the Proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia’s citizens, to perpetuate a generally-recognized deference to the state’s will pertaining to domestic relations laws, and, finally, to endorse "responsible procreation"—share no rational link with Virginia Marriage Laws being challenged. The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.
Judge Allen's opinion may be criticized as being longer on rhetoric than on exemplary legal analysis - - - a charge similar to that leveled against Justice Kennedy's opinion for the Court in United States v. Windsor declaring §3 of DOMA unconstitutional, upon which Judge Allen rightly relies. Judge Allen's numerous of invocations of Loving v. Virginia - - - including beginning the opinion with an extensive quote from Mildred Loving - - - have special resonance in Virginia. Yet at times, lofty language veers toward inaccuracy, as when the opinion states that "Our Constitution declares that 'all men' are created equal." (That's the wording of the Declaration of Independence not the Fourteenth Amendment's Equal Protection Clause). Others may contest that there can be "no serious doubt" that marriage is a fundamental right.
Nevertheless, Judge Allen's opinion follows on the heels of four other opinions by federal district judges reaching the same conclusion about their respective state laws and constitutional provisions: Bourke v. Beshear from the Western District of Kentucky; Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah (now stayed).
Judge Allen stayed the injunction against enforcement of the Virginia same-sex marriage ban, pending resolution by the Fourth Circuit.
But recall that the Virginia Attorney General has declared that he will not defend Virginia's same-sex marriage ban, a position that might mean that Judge Allen's opinion never reaches the Fourth Circuit as we analyzed here.
[image: 1848 map of Virginia via]
February 14, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Interpretation, Opinion Analysis, Race, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)
Tuesday, February 11, 2014
A divided panel of the D.C. Circuit ruled today in Aamer v. Obama that Guantanamo detainees may bring a habeas corpus claim in federal court challenging their forced-feeding by the government, but that that claim is not likely to succeed.
The ruling is notable, because it's the first time a federal appellate court ruled that Guantanamo detainees could bring a habeas claim to challenge their conditions of confinement (as opposed to the fact of their confinement).
The ruling is likely to bring a host of new habeas claims from detainees at Guantanamo--challenging not just the fact of their detention (the kind we've already seen) but also the conditions of their confinement. It may also bring a congressional response--to foreclose those claims.
The court also ruled that the detainees' challenge to their forced-feeding was not likely to succeed.
Some background: Congress enacted two provisions in the MCA designed to strip federal courts of jurisdiction over Guantanamo detainees' claims. The first, at 28 U.S.C. Sec. 2241(e)(1), purports to strip federal courts of jurisdiction over Guantanamo detainees' habeas claims challenging the fact of their detention:
No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The Supreme Court struck the provision in Boumediene v. Bush (2008), holding that Congress couldn't eliminate habeas jurisdiction over Guantanamo detainees without complying with the requirements of the Suspension Clause (which it had not).
The second provision, at 28 U.S.C. Sec. 2241(e)(2), purports to strip courts of jurisdiction over Guantanamo detainees' "other" claims challenging the conditions of their confinement:
Except as provided [in section 1005(e) of the DTA], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The D.C. Circuit previously confirmed that this latter section continued in force after Boumediene (because Boumediene dealt only with the habeas-stripping Section 2241(e)(1)), and lower court judges have ruled that it bars Guantanamo detainees from bringing habeas claims challenging their conditions of confinement (because those habeas claims were "other" claims challenging the conditions of confinement).
The D.C. Circuit ruled that it does not bar detainees' habeas claims, and that detainees may bring statutory habeas claims challenging the conditions of their confinement.
In answering the question, the court said that the two different parts of Section 2241(e) meant that Congress attempted in the MCA to bar (1) habeas claims and (2) "other" claims (i.e., non-habeas claims). It said that Section 2241(e)(2), in barring "other" claims, had no impact on habeas claims. And it said that Boumediene struck Section 2241(e)(1).
So, if the detainees brought a habeas claim, it would have been covered by Section 2241(e)(1), and because that provision was struck, their habeas claim survives.
The core question, then, is whether habeas (any habeas, at Guantanamo or not) extends not only to the fact of confinement (everyone agrees it does) but also to the conditions of confinement (that's where the parties disagreed). The court said that the Supreme Court left this question open, and that there is a split among the circuits. Still, it said that in the D.C. Circuit habeas extends both to fact-of-confinement and to treatment claims:
The availability of habeas for both types of challenges simply reflects the extension of the basic principle that "[h]abeas is at its core a remedy for unlawful executive detention." Munaf v. Geren. The illegality of a petitioner's custody may flow from the fact of detention . . . the duration of detention . . . the place of detention . . . or the conditions of detention. In all such cases, the habeas petitioner's essential claim is that his custody in some way violates the law, and he may employ the writ to remedy such illegality.
Because the detainees' claim was a habeas claim that would have fallen under Section 2241(e)(1), and because Section 2241(e)(2) bars only with "other" (non-habeas) claims and therefore doesn't affect the detainees' habeas claim at all, and because the Supreme Court struck Section 2241(e)(1), the detainees' habeas claim can go forward.
The court noted that Congress has been entirely silent on this--and has not acted to strip courts of jurisdiction over this kind of claim.
Judge Williams dissented, arguing that the detainees' claim does not sound in habeas and therefore is barred under Section 2241(e)(2).
The court also ruled that the detainees failed to show a likelihood of success on the merits of their force-feeding claims. The court said that there were valid penological interests in force-feeding hunger-striking detainees that outweighed the detainees' liberty interest. The court also said that the Religious Freedom Restoration Act does not extend to Guantanamo detainees, who, as nonresident aliens, do not qualify as protected "person[s]" under the RFRA.
The court affirmed the lower court's denial of a preliminary injunction, sending the case back for more on the merits.
February 11, 2014 in Cases and Case Materials, Congressional Authority, Due Process (Substantive), Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Friday, January 24, 2014
Can the Virginia Attorney General (Not) Do That? Analysis of the Virginia AG's decision not to defend the state same-sex marriage ban
The Office of the Attorney General of Virginia, representing Janet M. Rainey, in her official capacity as State Registrar of Vital Records, has filed a Notice of Change of Position (and Memorandum in Support) in Bostick v. Rainey, a case challenging the constitutionality of Virginia's same-sex marriage ban in federal district court.
The Complaint in Bostick, filed in September 2013, challenges both the Virginia Statute § 20-45.2. prohibiting marriages between persons of the same-sex (adopted in 1975) and the constitutional amendment, Article I, §15A, prohibiting not only marriages but other forms of relationship recognition, passed by ballot initiative in 2006.
The change of the state's position by Mark Herring, the newly elected Attorney General (pictured right) may have been unexpected in some quarters, but it replicates the United States Attorney General's decision not to defend the constitutionality of the Defense of Marriage Act (DOMA) as well as California Attorney General Jerry Brown's decision not to defend the constitutionality of Proposition 8. Recall that in the Proposition 8 trial, Perry v. Schwarzenneger, the constitutionality of Proposition 8 was defended by intervenors including protectmarriage.com, who the trial judge described as the “proponents” of Proposition 8. When district judge Vaughn Walker ruled that Proposition 8 was unconstitutional, an appeal ensued, followed by questions about whether the "proponents" has standing to appeal. Importantly, an attempt to obtain a writ of mandamus to mandate Governor Schwarzenegger appeal was unsuccessful. And also importantly, the United States Supreme Court, in Hollingsworth v. Perry, decided that the "proponents" did not have standing to appeal, thus ultimately leaving the district judge's opinion valid.
The Proposition 8 litigation is thus an object lesson in the perils of the government not defending the constitutionality of the state laws at trial - - - it might insulate a district judge's finding of unconstitutionality from appeal.
On the other hand, the United States Supreme Court did find that there was standing to appeal in the Defense of Marriage case, United States v. Windsor, despite the fact that the United States was not actually defending the constitutionality of the DOMA statute. The Court narrowly found that BLAG, the Bipartisan Legal Advisory Group of the House of Representatives who had taken up the defense of DOMA, at a substantial cost to taxpayers, had sufficient status to confer standing, or at least the case provided "sufficient adversarial presentation for the Court to decide to get to the merits." (Recall that the Court appointed ConLawProf Vicki Jackson to brief and argue BLAG's standing).
Thus. should some parties in Virginia seek to defend the state statutory and constitutional scheme, they should seek to approximate BLAG rather than a more private proponent, even if one could find some proponent for the 1976 statute.
Barring any state laws to the contrary, the Virginia AG surely has the power to make a determination that the state action is unconstitutional and thus decline to defend it. But it could prove a risky business when it comes to any party having standing on appeal should the district judge agree with the plaintiffs and with the state that the state scheme prohibiting same sex marriage is unconstitutional.
Saturday, January 18, 2014
In the provocatively titled "Is Obama Failing Constitutional Law?" and subtitled "Talking and tinkering may not be enough to make the old law professor’s surveillance program legal" Law Prof Jonathan Hafetz (pictured below) assesses President Obama's January 17 speech over at Politico.
Here's Hafetz on the "mixed bag" of Obama's proposed reforms to the FISA court:
The court currently operates in secret and hears only from the government, contrary to basic principles of due process. Obama said he would ask Congress to create a public advocate to argue for privacy concerns before the FISA court, as his advisory panel urged. But Obama did not clarify whether the advocate’s opportunity to argue would be left within the secret court’s discretion. Obama also rejected the panel’s recommendation to revise the method for selecting the court’s 11 members to create more balance. Presently, Chief Justice John Roberts alone decides the membership.
January 18, 2014 in Criminal Procedure, Current Affairs, Due Process (Substantive), Executive Authority, First Amendment, News, Profiles in Con Law Teaching, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 15, 2014
Oklahoma District Judge Joe Heaton declined to find that the Oklahoma license plate violated the First Amendment or other constitutional rights of Keith Cressman in his opinion in Cressman v. Thompson.
Recall that the Tenth Circuit, in a divided opinion in June 2013, held that Cressman had made plausible allegations that the symbol on the Oklahoma license plate - - - arguably the “Sacred Rain Arrow” - - - could be the basis of a compelled speech claim, similar to the classic First Amendment case of Wooley v. Maynard.
But on remand, Judge Heaton found that the plate's image (pictured below and included as the final page on Judge Heaton's opinion) did not rise to the level of symbolic speech with a particularized message. Although stating that there should be a broad interpretation, Judge Heaton nevertheless held:
Viewed by itself, all the disputed image involves is a depiction of a Native American shooting a bow and arrow. There is nothing about the image that suggests the man is praying or that the arrow he is shooting is sacred. There is nothing about the image that suggests he is worried about rain, or the lack thereof. There is nothing about the image that suggests he believes in one god, no god, or several. It simply depicts a Native American shooting a bow and arrow.
Judge Heaton rejected the constitutional significance of the "other things" Cressman learned about the image through "research." He opined that the "fact that additional research is necessary to know or identify the message of which plaintiff complains is itself “strong evidence” that the image, as such, is not subject to constitutional protection." Further, the image on the license plate is "not an exact replica" of the "Sacred Rain Arrow” sculpture; the plate image has the arrow pointing at a 60 degree angle "a pose consistent with a variety of scenarios in which a bow and arrow might be used," while the sculpture "involves a Native American shooting his arrow almost vertically into the air, a pose which arguably is more suggestive of a spiritual motive or connection."
Additionally, Cressman did not object to the words "Native America" on the license plate, another distinction from Wooley v. Maynard's "Live Free or Die" New Hampshire license plate.
Judge Heaton's final paragraph expressed a lack of sympathy for Cressman along with a suggestion:
The absence of a constitutional violation does not, of course, mean that plaintiff lacks a practical solution to the problem as he sees it. Oklahoma provides a simple, inexpensive, and readily available alternative, in the form of a specialty plate, for those who object to any aspect of a standard plate, an option which plaintiff has exercised both before and since his concerns with the current standard license plate arose.
Monday, January 13, 2014
The United States Supreme Court in Zablocki v. Redhail (1978) held unconstitutional a Wisconsin state statute requiring judicial permission for a marriage license for any person who had a support order for a minor.
The opinion, authored by Justice Marshall, considers the case as one of equal protection and opines that
our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that "critical examination" of the state interests advanced in support of the classification is required.
The Court also states that more recent decisions "have established that the right to marry is part of the fundamental "right of privacy" implicit in the Fourteenth Amendment's Due Process Clause," citing Griswold v. Connecticut.
Thus, although not as famous as Loving v. Virginia, Zablocki v. Redhail is also frequently cited in any argument that marriage is a fundamental right, notwithstanding the Court's qualification in Zablocki that "not every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny," but only ones that interfere directly and substantially with the right to marry.
In a new essay, Chronicle of a Debt Foretold: Zablocki v. Red Hail, by Tonya L. Brito, R. Kirk Anderson and Monica Wedgewood, forthcoming in The Poverty Law Canon and available on ssrn, the authors revive the importance of the wealth inequality relevance of the case and also reveal a racial aspect. Redhail, whose name is actually Roger Red Hail, is a Native American man, now in his late 50s, who still owes child support for the child he fathered when he was 16. Although the "child" is now in her 40s, he owes the money to state (with interest) and the state continues to garnish his wages.
There is a possibility that Red Hail's pending child support cases now under the jurisdiction of Milwaukee County would be transferred to the Oneida Tribal Judicial System.
The essay is a must-read for anyone considering the constitutional ramifications of equality or marriage.
January 13, 2014 in Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, History, Reproductive Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)
Thursday, January 2, 2014
In his opinion granting a final injunction in Obergefell v. Kasich, federal Judge Timothy Black addressed a particular enforcement of Ohio's limitation of marriage to opposite sex couples. He also cited and relied upon an interesting conceptualization put forth by Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 Mich. L. Rev. 1421 (2011), available on ssrn.
As the title indicates, Sanders argues that an individual who legally marries in his or her state of domicile, then migrates to another state, has a significant liberty interest under the 14th Amendment’s Due Process Clause in the ongoing existence of the marriage, as conceptually and doctrinally distinguishable from the constitutional “right to marry.”
Recall that the facts in Obergefell are especially sympathetic: one of the partners was a hospice patient and the relief requested regarded the martial status and surviving spouse to be recorded on the death certificate. As NPR reported, the couple "chartered a special medical jet to Maryland, where gay marriage is legal, and held a simple ceremony on the runway. And recall also that Judge Black's preliminary injunction opinion last July was one of the first after the Court decided United States v. Windsor, declaring section 3 of DOMA unconstitutional, and used Justice Scalia's dissent as part of the rationale for expanding Windsor.
Although Judge Black's preliminary injunction opinion certainly considered the effect of the out-of-state marriage, in the permanent injunction opinion, Judge Black constitutionalizes this conception:
In situations like those of Plaintiffs, however, where same-sex couples legally marry outside of Ohio and then reside in Ohio, a different right than the fundamental right to marry is also implicated: here, the constitutional due process right at issue is not the right to marry, but, instead, the right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections.
The footnote to this passage credits Steve Sanders article:
The concept of the right to remain married as a liberty interest protected by the Due Process Clause is eloquently advanced by Professor Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 MICH. L. REV. 1421 (2011). This judge acknowledges significant reliance upon Professor Sanders’s learned (and more extended) analysis of the fundamental right to remain married.
In the text of the opinion, Judge Black then quotes Sanders' article as stating, "In identifying the right to remain married as fundamental, Professor Sanders points out that the “[l]aw favors stability in legal relationships, vindication of justified expectations, and preventing casual evasion of legal duties and responsibilities.”
There is much talk about whether and when legal scholarship matters. In our new "Scholarship Matters" series, we'll continue to note incidents of scholarly influence on legal doctrine.
January 2, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Family, Fourteenth Amendment, Interpretation, Opinion Analysis, Scholarship, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Federal District Judge Upholds Most of New York's SAFE Act Against Second Amendment Challenge, Striking Some Provisions
In an opinion rendered on December 31, Judge William M. Skretny declared several provisions unconstitutional but upheld most of New York's SAFE Act in New York State Rifle and Pistol Association v. Cumo.
Judge Skretny, Chief Judge of the United States District Court for the Western District, sitting in Buffalo, applied intermediate scrutiny under the Second Amendment, drawing on the "post- Heller rulings that have begun to settle the vast terra incognita left by the Supreme Court." He concluded that the SAFE Act's definition and regulation of assault weapons and its ban on large-capacity magazines further the state’s important interest in public safety, and do not impermissibly infringe on Plaintiffs’ Second Amendment rights. However, he concluded that the seven-round limit did not satisfy intermediate scrutiny both on the governmental interest and the means chosen.
The plaintiffs also challenged ten specific provisions of the SAFE Act as void for vagueness and thus violative of due process:
- “conspicuously protruding” pistol grip
- threaded barrel
- magazine-capacity restrictions
- five-round shotgun limit
- “can be readily restored or converted”
- the “and if” clause of N.Y. Penal Law § 265.36 g muzzle “break”
- “version” of automatic weapon
- manufactured weight
- commercial transfer
The judge found three unconstitutional - - - the “and if” clause of N.Y. Penal Law § 265.36, the references to muzzle “breaks” in N.Y. Penal Law § 265.00(22)(a)(vi), and the regulation with respect to pistols that are “versions” of automatic weapons in N.Y. Penal Law § 265.00(22)(c)(viii) - - - concluding that these provisions were vague and "must be stricken because they do not adequately inform an ordinary person as to what conduct is prohibited."
The opinion also rejects the dormant commerce clause challenge to the provision of the SAFE Act that effectively bans ammunition sales over the Internet and imposes a requirement that an ammunition transfer “must occur in person.” The government had argued that the challenge was not ripe given that the section does not go into effect until January 15, 2014, but Judge Skretny decided the question was one of mere "prudential" ripeness and that the claim should be decided. Applying well-established dormant commerce clause doctrine, the judge found first that the SAFE Act did not "discriminate" against out of state interests and moving to the "balancing test" under Pike v. Bruce Church, Inc. (1970), the "incidental effects on interstate commerce" were not "excessive in relation to a legitimate local public interest."
Judge Skretny's 57 page opinion is scholarly and closely reasoned with specific findings. Yet the Second Amendment issues certainly reflect the fact that there are no established standard for judicial scrutiny of the regulations of the "right to bear arms. Recall that the Fifth Circuit's use of intermediate scrutiny in NRA v. AFT (regarding a federal restriction applying to persons less than 21 years of age) and in NRA v. McCraw (regarding Texas restrictions also applying to persons less that 21 years of age) are both being considered on petitions for writs of certiorari by the United States Supreme Court. Sooner or later, some sort of analytic framework for deciding Second Amendment issues will be established by the Court. Until then, federal judges are left to navigate what Judge Skretny called the "vast terra incognita" of Second Amendment doctrine.
January 2, 2014 in Courts and Judging, Dormant Commerce Clause, Due Process (Substantive), History, Interpretation, Opinion Analysis, Ripeness, Second Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)