Monday, September 30, 2013

Daily Read: Constitutional Rights and the Domestic War on Terror

Jeanne Theoharis (pictured right) Faculty_picturea Political Science Professor at Brooklyn College (CUNY) has an interesting article over at The Nation, as the first in a series of pieces in collaboration with Educators for Civil Liberties about the "domestic war on terror."  Theoharis discusses the well-known situation of Syed Fahad Hashmi, one of her former students.

She observes that "researchers and human rights advocates, focused on the horrors abroad in the “war on terror” (Guantánamo, Abu Ghraib, extraordinary rendition), had largely overlooked the civil rights abuses happening right here at home."

She argues

Just because something is legal does not make it just. Many of the most egregious rights violations in American history—slavery, the seizure of Indian land, segregation and the expansion of the penal system, the internment of Japanese-Americans, the firing of gay and communist-sympathizing federal employees during the McCarthy era—were accomplished and legitimated through the law. Most of these historical instances were undertaken as necessary security measures. It took public dissent and a sustained outcry, long and arduous struggles, to reveal the rights abuses embodied in the law.

This would be a great short "think piece" to stimulate conversation in a Constitutional Law class.

 

September 30, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive) | Permalink | Comments (0) | TrackBack (0)

Thursday, September 12, 2013

Illinois Supreme Court Strikes (Old) Ban on Aggravated Use of Weapons

The Illinois Supreme Court ruled today in Illinois v. Aguilar that a state law banning the aggravated unlawful use of weapons, or AUUW, violated the Second Amendment.  At the same time, the court upheld state law banning possession of a firearm, or UPF, by a person under 18 years of age.  

The ruling overturns the conviction of the criminal defendant in the case under the AUUW, but upholds the conviction under the UPF.  

But the ruling is limited to the state's old (and defunct) AUUW and doesn't affect current law.  That's because Aguilar was convicted under the state's old AUUW.  The Seventh Circuit already struck that law as violating the Second Amendment (and later denied en banc review) in Moore v. Madigan.  The state has since amended the law to allow for concealed carry of firearms with a permit and with certain restrictions.  Thus today's ruling only affects Aguilar; it doesn't say anything about the state's current law.

Illinois's old AUUW--the one Aguilar was convicted under--says:

(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:

(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm; [and]

(3) One of the following factors is present:

(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense . . . .

The court, following the Seventh Circuit in Moore, held that the Second Amendment includes a right to keep and bear arms outside the home for individual self-defense, and that the "comprehensive," "categorical[]" ban in the old AUUW law "amounts to a wholesale statutory ban on the exercise of a personal right that is specifically named in and guaranteed by the United States Constitution, as construed by the United States Supreme Court."  The court said, "In no other context would we permit this, and we will not permit it here either.

At the same time, the court upheld the state's UPF law.  (That law was not changed in the wake of Moore.)  It says:

A person commits the offense of unlawful possession of firearms or firearm ammunition when:

(a) He is under 18 years of age and has in his possession any firearm of a size which may be concealed upon the person . . . .

The court said that the Second Amendment doesn't protect a juvenile's right to possess a firearm--that the UPF restriction falls into the category of allowable "longstanding prohibitions on the possession of firearms" that the Supreme Court carved out in Heller.  The court said that laws banning possession of firearms by minors have been around for a long time (even if many colonies permitted or even required minors to own and possess firearms for purposes of militia service, as Aguilar argued).

September 12, 2013 in Cases and Case Materials, Due Process (Substantive), News, Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 10, 2013

Tenth Circuit Upholds Utah's Sexual Solicitation Statute

Sexual solicitation statutes suffer from challenges based upon overbreadth and vagueness.  In its opinion in Bushco, Inc. v. Shurtleff, a panel of the Tenth Circuit upheld amendments to Utah's statute, reversing the district judge on the unconstitutionality of one of the provisions.

 

Kaufmann Solicitations of Folly
"Beauty Directed by Prudence Rejects with Scorn the Solicitations of Folly" circa 1780
The “Sex Solicitation Amendments,”  House Bill 121 amended Utah Code Ann. § 76-10-1313 by adding two new provisions: § 1313(1)(c) and § 1313(2):

 

1. A person is guilty of sexual solicitation when the person: ... .

c. with intent to engage in sexual activity for a fee or to pay another person to commit any sexual activity for a fee engages in, offers or agrees to engage in, or requests or directs another to engage in any of the following acts:
    i. exposure of a person’s genitals, the buttocks, the anus, the pubic area, or the female breast below the top of the areola;
    ii. masturbation;
    iii. touching of a person’s genitals, the buttocks, the anus, the pubic area, or the female breast; or
    iv. any act of lewdness.

2. An intent to engage in sexual activity for a fee may be inferred from a person’s engaging in, offering or agreeing to engage in, or requesting or directing another to engage in any of the acts described in Subsection (1)(c) under the totality of the existing circumstances.

The Tenth Circuit, like the trial judge, rejected the First Amendment challenges, applied the test for expressive conduct from the 1968 case of United States v. O'Brien, and found that all the O'Brien prongs were satisfied.  It did note, however, an as-applied challenge to overbreadth was possible.

On the vagueness claim, the panel found that § 1313(1)(c) was not unconstitutionally vague, again affirming the district judge.  However, the Tenth Circuit panel disagreed with the trial judge's conclusion that the subsequent provision - - - § 1313(2) - - - was unconstitutionally vague.  Instead, the Tenth Circuit panel found that the language "under the totality of the existing circumstances" would constrain a police officer's discretion rather than encouraging arbitrary and discriminatory enforcement as the district judge had reasoned.

The Tenth Circuit's opinion demonstrates how difficult it is to prevail on a challenge to a sex solicitation challenge.  Interestingly, it was Bushco, Inc, an escort service company, that appealed from its partial victory in the district court, with the State Attorney filing a cross-appeal.

 [image via]

September 10, 2013 in Due Process (Substantive), First Amendment, Opinion Analysis, Sexuality | Permalink | Comments (0) | TrackBack (0)

Sunday, September 1, 2013

Federal Judge Allows Lawsuit for Unconstitutional Sex Assignment Surgery to Proceed

In the closely watched case of M.C. v. Aaronson,  a minor claims a violation of both substantive and procedural due process under the Fourteenth Amendment by South Carolina doctors who performed genital surgery on a child in state custody (foster care).    We discussed the case when the complaint was filed in May.

IntersexualflagIn a 15 page order United States District Judge David Norton denied the motions to dismiss by the various defendants.  With regard to the substantive due process right, the judge found that "M.C. has articulated that defendants violated his clearly established constitutional right to procreation.," and as a "result, defendants’ assertion of qualified immunity must fail at this stage in the litigation."  Given this conclusion, the judge stated he "need not consider M.C.’s arguments that defendants also violated his rights to privacy and bodily integrity."

As for the procedural due process rights, the judge again found that M.C. stated a claim, and that further analysis of the Matthews v. Eldridge factors was not appropriate at this stage.

But as the judge's opinion made clear, the hurdle of summary judgment looms:

Underlying this case’s complex legal questions is a series of medical and administrative decisions that had an enormous impact on one child’s life. Details of how those decisions were made, when they were made, and by whom are as yet unknown to the court. Whether M.C.’s claims can withstand summary judgment challenges, or even the assertion of qualified immunity at the summary judgment stage, is not for the court to hazard a guess at this time. It is plain that M.C. has sufficiently alleged that defendants violated at least one clearly established constitutional right – the right to procreate – when they recommended, authorized, and/or performed the sex assignment surgery in April 2006.

Indeed, this same order included a grant of M.C.'s request for expedited discovery.

RR
[image via]

September 1, 2013 in Due Process (Substantive), Fourteenth Amendment, Gender, Medical Decisions, Opinion Analysis, Privacy, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)

Monday, August 26, 2013

New Jersey's Prohibition of Sexual Orientation Conversion Challenged

New Jersey's Republican Governor Chris Christie (pictured) signed New Jersey A3371 banning so-called sexual conversion or reparative therapy on minors into law earlier this month. 

DSC_3546_smallIn his signing statement, Christie said:

At the outset of this debate, I expressed my concerns about government limiting parental choice on the care and treatment of their own children. I still have those concerns. Government should tread carefully into this area and I do so here reluctantly. I have scrutinized this piece of legislation with that concern in mind.

However, I also believe that on issues of medical treatment for children we must look to experts in the field to determine the relative risks and rewards. The American Psychological Association has found that efforts to change sexual orientation can pose critical health risks including, but not limited to, depression, substance abuse, social withdrawal, decreased self-esteem and suicidal thoughts.

I believe that exposing children to these health risks without clear evidence of benefits that outweigh these serious risks is not appropriate. Based upon this analysis, I sign this bill into law.

 

 Despite Christie's careful articulation of  his support for the bill, it was criticized and quickly challenged in a complaint filed in federal court in King v. Christie.  The plaintiffs include Tara King, a licensed professional counselor, as well as National Association for Research and Therapy of Homosexuality (“NARTH”) and American Association of Christian Counselors (“AACC”).  They argue that the law violates their First Amendment rights of free speech, rights of their clients to "receive information," and free exercise of religion, as well as clients' parental due process rights under the Fourteenth Amendment, in addition to concomitant rights under the New Jersey state constitution.

RR

UPDATE: In Pickup v. Brown, the Ninth Circuit has upheld California's similar law banning sexual conversion therapy.

 

August 26, 2013 in Current Affairs, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fundamental Rights, Medical Decisions, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 23, 2013

North Dakota Federal Judge Enjoins North Dakota's Abortion Restrictions

 

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North Dakota State Capitol Building
Judge Daniel Hovland's opinion in MKB Management, Inc. v. Burdick grants a preliminary injunction against North Dakota House Bill 1456 passed by the legislature and signed by the Governor, which would make it a criminal offense to perform an abortion if a “heartbeat” has been detected, thereby banning abortions beginning at approximately six weeks of pregnancy, with limited exceptions.  As the plaintiffs, who run the only abortion clinic in North Dakota, argued, abortions before six weeks are exceedingly rare, in part because a woman rarely knows she is pregnant before that time. 

 

A woman’s constitutional right to terminate a pregnancy before viability has consistently been upheld by the United States Supreme Court in the forty years since Roe v. Wade. See e.g., City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 420 (1983) (a woman has a constitutional right to terminate her pregnancy) (overruled on other grounds); Casey, 505 U.S. at 846 (a woman has a right to an abortion before viability without undue interference from the state); Stenberg, 530 U.S. at 921 (a woman has the right to choose an abortion before viability); Gonzales, 550 U.S. 124 (the state may not prevent “any woman from making the ultimate decision to terminate her pregnancy”).

Indeed, Judge Hovland stated:

It is crystal clear from United States Supreme Court precedent that viability, although not a fixed point, is the critical point.

(emphasis in original).  He characterized the Defendants’ arguments as "necessarily rest[ing] on the premise that every Court of Appeals to strike a ban on pre-viability abortion care has misread United States Supreme Court precedent."  He stated that "until" Roe v. Wade and Casey are "overturned by the United States Supreme Court, this Court is bound to follow that precedent under the rule of stare decisis."

After briefly assessing the traditional standards for a preliminary injunction, Judge Hovland enjoined North Dakota House Bill 1456 which was to become effective August 1. 

Where and on what basis the "viability" line can be drawn remains uncertain in the continuing abortion debates, but six weeks is certainly too early.

RR

July 23, 2013 in Abortion, Due Process (Substantive), Fourteenth Amendment, Fundamental Rights, Medical Decisions, Opinion Analysis, Privacy, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 16, 2013

More on the Aftermath of Windsor (DOMA) and Perry (Prop 8) decisions: California, Pennsylvania, Arkansas, North Carolina Litigation

The Court's decisions in United States v. Windsor, declaring section 3 of DOMA unconstitutional, and Perry v. Hollingsworth, holding that the "proponents" of Proposition 8 lacked standing to appeal a federal judge's declaration of Prop 8's unconstitutionality, have not settled the matter of the unconstitutionality of same-sex marriage restrictions. 

In what promises to be a continuing series, here are a few highlights:

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In California, the home of Proposition 8, the litigation centers on Prop 8's constitutional status given that the Supreme Court held that the proponents did not have standing to appeal the federal district judge's holding that Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause.  The original injunction was stayed, and again stayed by the Ninth Circuit even as it affirmed the district judge, but after Perry, the Ninth Circuit dissolved the stay amid questions about the effect of Perry which we discussed here.

The proponents of Prop 8 have moved (back) to the state courts, filing Hollingsworth v. O'Connell on July 12 seeking a stay from the California Supreme Court.  Their basic argument is that a single federal judge should not have the power to declare a law unconstitutional for the entire state and they seek a mandate forbidding county clerks from issuing same-sex marriage licenses.  On July 16, the California Supreme Court declared - - - as a docket entry and without opinion - - - "The request for an immediate stay or injunctive relief is denied." It also granted the motions for counsel to proceed pro hac vice, so the case will presumably be moving forward. 

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In Pennsylvania, a complaint in Whitewood v. Corbett was filed July 9, as a new constitutional challenge to the state's "little DOMA" provisions passed the same year as the federal DOMA, 1996  - - - 23 Pa. Consolidated Statute §1102 (defining marriage as between one man and one woman) and 23 Pa. Consolidated Statutes §1704 (declaring one man-one woman marriage as the strong public policy of state and refusing to recognizing same-sex out of state marriages).  The Complaint interestingly quotes and cites language from Windsor several times. For example:

¶10. The exclusion from marriage undermines the plaintiff couples' ability to achieve their life goals and dreams, threatens their mutual economic stability, and denies them "a dignity and status of immense import." United States v.Windsor, No.12-307, Slip Op., at 18 (U.S. June 26, 2013).  Moreover, they and their children are stigmatized and relegated to a second class status by being barred from marriage. The exclusion "tells[same-sex couples and all the world- that their relationships are unworthy" of recognition. Id. at 22-23.  And it "humiliates the ...children now being raised by same-sex couples" and "makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Id. at 23.

The Attorney General for Pennsylvania, Kathleen Kane, has reportedly declared she will not defend the constitutionality of the state statutes barring same-sex marriage. The Pennsylvania Governor, Tom Corbett, the named defendant and a Republican, as well as the state legislature, are presumably studying the holding regarding BLAG's standing in Windsor.

712px-Flag-map_of_Arkansas.svg

In Arkansas, the complaint in Wright v. Arkansas was filed in state court on July 2.  Arkansas has both a statute and constitutional amendment DOMA (the belt and suspenders approach).  The 29 page complaint does not quote or cite Windsor, but does claim that the Arkansas prohibition of same-sex marriage violates the Due Process and Equal Protection Clauses of both the state and federal constitution, as well as violating the Full Faith and Credit Clause.  First reports are that the state will defend the lawsuit.

613px-Flag-map_of_North_Carolina.svg

In addition to new complaints filed post-Windsor (Perry), ongoing litigation will certainly be changed.  For example, the North Carolina federal court complaint in Fisher-Borne v. Smith challenging North Carolina's failure to provide so-called second-parent adoption is being amended - - - reportedly with agreement of the state - - - to include a claim challenging the state's prohibition of same-sex marriage. 

While one message of Windsor and even Perry could be understood as being that marriage, same-sex or otherwise, is a matter of state law, another message of Windsor is certainly that there are constitutional problems prohibiting same-sex marriage. 

 

800px-Samesex_marriage_in_USA.svg 

 

Screen Shot 2013-07-16 at 10.35.33 AM

With a patchwork of state laws, this is a fertile landscape for continuing litigation.

RR
[all images Wikimedia; final image here]

July 16, 2013 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fifth Amendment, Fourteenth Amendment, Interpretation, News, Recent Cases, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, May 16, 2013

Federal Complaint for Unconstitutional Sex Assignment Surgery on Infant

400px-3D_gender_symbol.svgThe surgical "assignment" of sex/gender to an infant born with "ambiguous" genitals is a problem that has garnered much attention.

The Constitutional Court of Colombia issued a series of opinions beginning in 1995, analyzed in a 2004 law review article by Kate Haas, Who Will Make Room for the Intersexed?, that recognize a constitutional right of children, albeit limited, with regard to the surgery.  A ground-breaking symposium issue of Cardozo Journal of Law & Gender in 2005 engages with many of the legal issues and proposed solutions, often recognizing the limits of constitutional remedies in the United States given that the surgeries are usually the result of private action.

But a complaint filed this week, M.C. v. Aaronson, by the Southern Poverty Center claims a violation of both substantive and procedural due process under the Fourteenth Amendment by South Carolina doctors who performed genital surgery on a child in state custody (foster care).  M.C., now 8 years old, brings the case through his adoptive parents. 

The substantive due process claim is a relatively obvious one, building on established United States Supreme Court cases finding a right to be free of coerced medical procedures including Cruzan v. Director, Missouri Department of Health (1990).  The right is a bit muddled, however, given that the highly discredited 1927 case of Buck v. Bell has never been actually overruled; the declaration that castration was as unconstitutional penalty for a crime in Skinner v. Oklahoma rested on equal protection grounds. 

The procedural due process claim is more novel, contending that the minor was entitled to a pre-deprivation hearing before the surgery.  Such a hearing would presumably be of the type that Erin Lloyd recommended for all minors (whether in state custody or not) in her article From the Hospital to the Courtroom: A Statutory Proposal for Recognizing and Protecting the Legal Rights of Intersex Children in the Cardozo Journal of Gender and Law Symposium issue. 

An accompanying lawsuit filed in state court alleges medical malpractice and failure to obtain informed consent, raising the same underlying facts and many of the same issues, but under state law.

Southern Poverty Center has produced a video featuring the parents and outlining the facts of the case:

 

 This is definitely a case to watch.

RR
[image via]

May 16, 2013 in Cases and Case Materials, Comparative Constitutionalism, Due Process (Substantive), Fourteenth Amendment, Gender, Medical Decisions, Procedural Due Process, Sexuality, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Monday, May 6, 2013

Daily Read: New Book "The Price of Justice" Discusses the Caperton Case

9780805094718

The 2009 sharply divided Supreme Court opinion in Caperton v. Massey Coal is the centerpiece of the new book, The Price of Justice: A True Story of Greed and Corruption by Laurence Leamer.  Recall that the Court in Caperton ruled that due process required judicial recusal of a West Virginia Supreme Court of Appeals judge, Justice Brent Benjamin, in a case involving Massey Coal because of the contributions by Massey Coal to Justice Benjamin's campaign.

The starred review from Publisher's Weekly describes the book as

the riveting and compulsively readable tale of the epic battle between Don Blankenship, the man who essentially ran the West Virginia coal industry through his company Massey Energy, and two seemingly ordinary attorneys: Bruce Stanley and David Fawcett. The centerpiece of the story is a West Virginia mine owner whom Blankenship purposefully bankrupted, and on whose behalf Stanley and Fawcett won (in 2002) a $50 million dollar verdict that is still unpaid. In hopes of having the ruling overturned by the West Virginia Supreme Court, Blankenship sought to “buy” a seat on the court by contributing over $3 million to the successful campaign of a conservative judicial candidate. However, the U.S. Supreme Court eventually found that Blankenship’s contributions were too much to allow the new West Virginia justice to hear the case. Leamer has produced a Shakespearean tale of greed, corporate irresponsibility, and personal hubris on the one hand, and idealism, commitment to justice, and personal sacrifice on the other. Blankenship is a villain for all time, and Stanley and Fawcett are lawyers who bring honor to their profession.

A good addition to that summer reading list for anyone interested in constitutional law and anyone who might like a reminder that lawyers can, indeed, be heroic.

RR

May 6, 2013 in Books, Campaign Finance, Cases and Case Materials, Courts and Judging, Due Process (Substantive), Elections and Voting, Fourteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Friday, May 3, 2013

New York's Highest Court on the Constitutionality of Force-Feeding Hunger Striking Prisoners

The hunger strike amongst prisoners at Guantanamo Bay has led to force-feeding, a situation prompting the Office of the High Commissioner for Human Rights at the UN to issue a statement reiterating the disapproval of Guantanamo and remind the United States that:

in cases involving people on hunger strikes, the duty of medical personnel to act ethically and the principle of respect for individuals’ autonomy, among other principles, must be respected. Under these principles, it is unjustifiable to engage in forced feeding of individuals contrary to their informed and voluntary refusal of such a measure. Moreover, hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence. Health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike. Nor is it acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.

New York's highest court, in its opinion in Bezio v. Dorsey regarding a state prisoner on a hunger strike reached an opposite conclusion.  The court's majority stated:

The issue before us is whether Dorsey's rights were violated by a judicial order permitting the State to feed him by nasogastric tube after his health devolved to the point that his condition became life-threatening. We answer that question in the negative.

450px-Galler,_Hornsgatan_2012aYet the question of Dorsey's "rights" that were properly before the court occupied the bulk of the majority and dissenting opinions.  The state Department of Corrections and Correctional Services (DOCCS) had originally sought the judicial order relating to Dorsey, a "serial hunger striker," which Dorsey resisted with pragmatic rather than constitutional arguments.  But the state relied heavily on previous New York law - - - including a case involving Mark Chapman, the man convicted of murdering John Lennon - - - to support the constitutionality of forced-feeding. 

Chief Judge Lippman, dissenting (and joined by Judge Rivera) argued that there were too many factual distinctions, including any finding that the prisoner or the institution was actually in danger.

As noted, DOCCS's own consulting psychiatrist stated flatly in his assessment that Mr. Dorsey was not suicidal. He was undoubtedly manipulative [as the doctor had stated], but all civil disobedience is manipulative. Manipulativeness, obviously, is not a sufficient predicate for forced feeding by the State.

While concluding that the issues are not properly before the court, and that the case is moot under state constitutional doctrine, the dissenting judges nevertheless concluded

The right to refuse treatment, we have held, is a kind of liberty interest within the protective ambit of the Due Process Clause of the State Constitution. While the right may be overcome in compelling circumstances justifying the state's resort to its police power and the state may thus intervene to prevent suicide, the individual's basic prerogative to make decisions affecting his or her own personal health and right to be left alone, i.e. to personal privacy, ordinarily will trump even the best intended state intervention.  

For the majority of the court, however, the balance articulated in Turner v. Safley (1987) was easily resolved in favor of the legitimate penological interests of the prison, including the risk of a "significant destabilizing impact on the institution" by an inmate hunger strike, to allow force feeding an inmate.

RR
[image via]

May 3, 2013 in Due Process (Substantive), First Amendment, Fourteenth Amendment, International, Medical Decisions, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, April 22, 2013

Daily Read: The Terrorism Exception to the Constitution?

Should there really be a "terrorism" exception to the criminal procedure protections in the Bill of Rights?

ConLawProfs looking for an extended treatment of this question might do well to turn to Norman Abrams' article, Terrorism Prosecutions in U.S. Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions, available at 4 Harv. Nat’l Sec. J. 58 (2012).

Abrams argues for a something less than a wholesale exception:

The expression, “cabined,”  is  meant to signify not extending  all the way up the ladder of police  interrogation  methods, but only applying to a limited, non  -  extreme set of interrogation  methods, albeit methods that under current law might lead to a  determination of involuntariness.  A cabined exception is one that would, under the appropriate circumstances, authorize the FBI, or other police agencies, to use interrogation methods that exceed existing constitutional limits as  established by the Supreme Court, but only up to a point, and not to the  point where the methods used are extreme.

For some, allowing law enforcement the discretion to determine the "appropriate circumstances" and the methods that are not "extreme" is exceedingly troubling.  But Abrams extended argument seeking to support his conclusion is worth a read, even as the immediate issue of the possibility of a "terrorism exception" applied to Tsarnaev has receded.  

RR


April 22, 2013 in Criminal Procedure, Due Process (Substantive), Scholarship, State Secrets, Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, April 18, 2013

Daily Read: Spindelman on Carpenter on Lawrence

Integral to the same-sex marriage cases of Perry and Windsor argued before the Court last month is the 2003 case of Lawrence v. Texas.  Although the Court's opinion specifically excluded marriage in its caveat paragraph, the declaration that sodomy laws were unconstitutional under the Due Process Clause is generally considered a linchpin of recognizing any constitutional right to same-sex marriage under the Equal Protection Clause. 

Spindelman_marcProfessor Marc Spindelman (pictured) reviews Professor Dale Carpenter's book Flagrant Conduct: The Story of Lawrence v. Texas in a trenchant essay entitled Tyrone Gardner's Lawrence v. Texas appearing in Michigan Law Review.  Spindelman acknowledges the contribution of the book even as he uses it as a springboard to reach different conclusions about the potential of the case to achieve equality or civil rights.  Spindelman focuses on Tyrone Gardner, who along with John Geddes Lawrence was arrested for sodomy, as a lens for exploring the reach of Lawrence v. Texas.  

Refering to Gardner, Spindeleman asks, "How could Lawrence v. Texas, this great victory for lesbian and gay civil rights, have done and meant so very little to the life of one of the two men most central to it?"  Spindelman's answers explore the status-quo bias and moral conservatism of Lawrence, connecting the case to affirmative action decisions as well as to the "Obamacare" case, Nat’l Fed’n of Indep. Bus. v. Sebelius.

Every ConLawProf teaching Lawrence v. Texas would do well to read Spindelman's essay. 

RR

April 18, 2013 in Books, Due Process (Substantive), Equal Protection, Gender, History, Race, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US), Teaching Tips, Theory | Permalink | Comments (0) | TrackBack (0)

Monday, April 15, 2013

Oral Argument Preview: Adoptive Couple v. Baby Girl and the Constitutional Issues

The oral arguments in Adoptive Couple v. Baby Girl, on certiorari to the South Carolina Supreme Court will be held on April 16.  The case, also known as “Baby Veronica,” is an emotional struggle over custody of a small child.

On one view, the Court’s task is a relatively simple one of statutory interpretation, including the definition of “parent” in the Indian Child Welfare Act, ICWA.  The petitioners, the adoptive couple, articulate the questions presented as:

(1) Whether a non-custodial parent can invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.

(2) Whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

The questions presented by the respondent birth father, a registered member of the Cherokee Nation, and by the respondent Cherokee Nation, and by the United States as amicus curiae supporting the respondent, all likewise focus on ICWA, albeit with a different persuasive cadence.   These articulations stress the positive acts of the biological father.  For example, as the biological father phrases the parenting definition question:

Whether an Indian child’s biological father who has expressly acknowledged that he is the child’s father and has established that he is the father through DNA testing is the child’s “parent” within the meaning [of ICWA].

The Brief of the United States as amicus curiae, supporting the respondent father and tribe has a similar issue statement, asking whether the state courts properly applied ICWA

 to award custody of an Indian child to her biological father over an adoptive couple, where the father acknowledged and established his paternity and no remedial measures had been taken to avoid termination of his parental rights.

However, the case is not merely one of statutory interpretation, but raises important, if not always obvious, constitutional issues.

First, Congressional intervention in child welfare must rely on a particularly enumerated power of Congress, the usual one being the Spending Clause.  For Native Americans, however, Congressional power is often labeled “plenary,” although it is grounded most specifically in the Indian Commerce Clause, Art. I §3 cl. 8.   ICWA was intended to prevent the removal of Native children from their parents - - - as well as their tribes - - - a history that many of the amicus briefs discuss in depth. 

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Second, and relatedly, this Congressional power over Native children raises federalism issues, especially given that child custody and adoption are generally within the state’s police powers.  In the case of Baby Veronica, the South Carolina Supreme Court affirmed the trial judge’s application of ICWA to deny the adoption and award custody to the Native father. Yet the very existence of ICWA arguably intrudes upon state police powers.

Third, and most stealthily, the case may present issues of due process and equal protection.  In the brief on behalf of Baby Veronica through her Guardian ad Litem authored by Paul Clement, the arguably “erroneous interpretation” of ICWA “raises serious constitutional issues.”  In this argument, the best interests of the child standard - - - the usual touchstone in child adoption and custody - - - aspires to a constitutional right of the child.  Moreover, the state court’s decision violated the baby’s equal protection and due process rights.

For example, the brief analogizes to the equal protection case of Palmore v. Sidoti:

In Palmore, this Court struck down the use of racial classifications to remove a child from an appropriate custody placement. This case is no different. Baby Girl’s Indian blood quantum was the sole reason the lower court ordered her removed from the loving, stable home she had lived in since birth and placed with a biological father whose failure to timely care for her extinguished any parental rights he might otherwise have had under state law or the Constitution.

Less successfully, the brief attempts to articulate a liberty interest of the child:

And “to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation.” Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J., dissenting).

Yet ultimately, the brief argues that there is an (unconstitutional) racial classification if ICWA is applied too broadly.  Clement argues that ICWA should be interpreted to limit "its application to adoption and custody proceedings involving children who are either domiciled on a reservation or have some other tribal connection beyond biology."  

These limitations are crucial to preserving the Act’s constitutionality, ensuring that the Act’s differential treatment of Indians operates only to promote tribal sovereignty and the unique interests of Indians as tribal citizens, and not as invidious racial discrimination that arbitrarily trumps Baby Girl’s liberty interests.  [ICWA's] definition of parent, properly interpreted, avoids these difficulties by declining to give an unwed Indian father rights based on biology alone that no non-Indian unwed father enjoys. 

Moreover, ICWA's constitutional interpretation rests upon limiting its "application to children in the pre-existing custody of an Indian parent or other circumstances in which there is a distinct connection to tribal interests."

Clement - -  who so recently represented BLAG supporting the constitutionality of DOMA in United States v. Windsor - - - here has quite a different view of equality and federal power.  

While it is unlikely that these constitutional arguments assume center stage, they may infuse the statutory interpretation of ICWA so squarely before the Court.

RR
[image circa 1890 via]

April 15, 2013 in Congressional Authority, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fundamental Rights, History, Interpretation, Race, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, April 8, 2013

Daily Read: Linda Greenhouse on Federalism and Same-Sex Marriage

In her column in the NYT last week, Linda Greenhouse wonders whether the federalism argument in the challenge to DOMA in United States v. Windsor is a "Trojan horse." 

Greenhouse has this reminder about federalism and family law:

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)

Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.

800px-Troi
Moreover, she extends the argument outside marriage and family law:

Substitute “marriage” for “criminal procedure” and you time-travel into last week’s argument. But you will listen in vain for the voice of Justice William O. Douglas, who brushed away concerns about what he dismissively called “this federalism” to ask: “Has any member of this court come out and said in so many terms it’s the constitutional right of a state to provide a system whereby people get unfair trials?”

As usual, Linda Greenhouse is worth a read, for ConLaw Profs and ConLaw students.

RR
[image via]

April 8, 2013 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fifth Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Oral Argument Analysis, Sexual Orientation, Sexuality, Sixth Amendment, Supreme Court (US), Theory | Permalink | Comments (2) | TrackBack (0)

Wednesday, March 27, 2013

Daily Read: Same-Sex Marriage and Supreme Court Analysis

What should the Supreme Court do in the Prop 8 (argued yesterday) and DOMA [update: argued today] cases?

Be clear!

464px-Lesser_Ury_Leser_mit_LupeThis is from the essay Toward a more perfect analysis, published in the SCOTUSBlog same-sex marriage sympoisum in September 2012:

The suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor.  While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality.  Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.

Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions.  This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden.  However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.

Regarding the suggested holdings in the Proposition 8 and DOMA cases, the Supreme Court’s clear conclusion that sexuality merits intermediate scrutiny review, like gender, would disentangle the equal protection doctrine from the animus inquiry.  While certainly animus can be operative, the inquisition into intent invites protestations of moral belief or religious conviction.  The false opposition between equality and morals needs to be abandoned.  Additionally, the linking of sexual orientation and gender as quasi-suspect should lead courts to find classifications based upon gender identity, transgender identity, or gender nonconformity as similarly subject to intermediate scrutiny review. Additionally, the Supreme Court’s definitive holding that marriage is a fundamental right meriting strict scrutiny review would extricate the issues from the federalism quagmire.

RR
[image via]

March 27, 2013 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Gender, Interpretation | Permalink | Comments (0) | TrackBack (0)

Thursday, March 14, 2013

Daily Read: Emily Bazelon on the Soda Ban Opinion

The opinion of a New York judge holding unconstitutional the NYC Department of Health regulation regarding soda sizes - - - popularly known as Mayor Bloomberg's soda ban - - - might be viewed as a triumph of conservative principles deployed to prevent government overreaching. 

Final

But over at Slate, Emily Bazelon provides a contrary view. Indeed, she writes that

Judge Tingling paid lip service to the principle that courts must defer to elected bodies, which include executive agencies, but really, he is just substituting his judgment for theirs.

She has a good analysis of the opinion, both the separation of powers issue and the "arbitrary and capricious" conclusion, but also situates the opinion within larger notions of "conservative judicial activism."

Worth a read, especially for those outside NYC who want more depth than the surfeit of news stories are providing.

RR
[image via]

March 14, 2013 in Courts and Judging, Current Affairs, Due Process (Substantive), News, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 13, 2013

Divided Fourth Circuit Panel Declares Virginia's Sodomy Law Unconstitutional: A Decade After Lawrence v. Texas

William Scott MacDonald was arrested more than a year after Lawrence v. Texas (2003), for solicitation to violate Virginia's (anti-)sodomy law, Va. Stat §18.2-361(A): "If any person . . . carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a [felony.]"  He was eventually sentenced to ten years, with nine years suspended, and thereafter compelled to register as a sex offender.  His life, as Adam Liptak reported in 2011, has not been easy.

The underlying problem is the often-called "caveat language" in Justice Kennedy's opinion in Lawrence v. Texas:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

In MacDonald's situation, the solicitation - - - all parties agree no sex actually occurred - - - was found to be of a 17 year old woman.  (Interestingly, the 47 year old MacDonald had originally contacted law enforcement alleging that the young woman had sexually assaulted him; he was also convicted of the misdemeanor of making a false report.)  The prosecution thus successfully argued that Lawrence v. Texas was inapposite since the Virginia statute - - - as applied - - - was constitutional.  This argument succeeded even though the the age limit in the solicitation statute was 15, not 18.  

The Commonwealth of Virginia was similarly successful in its arguments in state courts on direct appeal and postconviction relief.  MacDonald thereafter sought federal habeas relief, with the district judge rejecting the constitutional arguments.

The Fourth Circuit's opinion yesterday in MacDonald v. Moose belatedly provides relief for MacDonald.  The panel majority wrote that "we are constrained" to  find an entitlement to habeas corpus relief on the ground that the Virginia anti-sodomy provision "facially violates the Due Process Clause of the Fourteenth Amendment."   The Fourth Circuit's opinion seems at times quite deferential to Virginia, but at two points the opinion sharpens its rhetoric.

First, the panel points to an inconsistency in Virginia's treatment of MacDonald:

The Commonwealth’s efforts to diminish the pertinence of Lawrence in connection with MacDonald’s challenge to the anti-sodomy provision — an enactment in no way dissimilar to the Texas and Georgia statutes deemed unconstitutional by the Supreme Court — runs counter to Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005). In that case, the Supreme Court of Virginia evaluated the constitutionality of a state statute having nothing to do with sodomy, but instead outlawing ordinary sexual intercourse between unmarried persons. The state supreme court nonetheless acknowledged that Lawrence was sufficiently applicable to require the statute’s invalidation.

Second, in a footnote the panel majority expressed its disagreement with the dissent in terms that questioned Virginia's prosecutorial choices:

The dissent’s finely honed distinction that, unlike Lawrence and Bow- ers, this "case" involves minors, is made possible solely by the Commonwealth’s decision to institute prosecution of a man who loathsomely solicited an underage female to commit an act that is not, at the moment, a crime in Virginia. The Commonwealth may as well have charged Mac- Donald for telephoning Ms. Johnson on the night in question, or for persuading her to meet him at the Home Depot parking lot. The legal arm of the Commonwealth cannot simply wave a magic wand and decree by fiat conduct as criminal, in usurpation of the powers properly reserved to the elected representatives of the people.

Yet despite this outcome, and the amicus brief the case attracted, it is difficult not to believe some apology is yet owed to MacDonald.

RR
[image via]

March 13, 2013 in Courts and Judging, Due Process (Substantive), Federalism, Fourteenth Amendment, News, Opinion Analysis, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 11, 2013

Federal District Judge Upholds Most of Arizona's Anti-Ethnic Studies Law, HB 2281

Arizona's HB 2281, which we noted when it was passed in 2010,  has been primarily upheld by federal district judge Wallace Tashima in his opinion late last Friday in Acosta v. Huppenthal.   Recall that HB 2281, 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.

532px-Arizona_1860_3Savings clauses in subsections E and F state that the statute should not be construed to restrict or prohibit instruction in various matters, including "the historical oppression of a particular group of people based on ethnicity, race, or class."

It was the savings clauses and Judge Tashima's narrow interpretation of the statute that supported his conclusion that most of the statute survived the First Amendment challenge.  Judge Tashima also ruled that the statute survived the Equal Protection and Due Process challenges.

As to the First Amendment, Judge Tashima explained:

Plaintiffs’ First Amendment claims are premised on two bases: the  right to speak freely in the classroom, and the right to receive information and ideas. The first basis cannot sustain their claims because the statute does not limit what students can say in the classroom. But the statute does implicate the second basis because Plaintiffs have an established right to receive information and ideas in the classroom. Limitations on this right, however, are subject only to limited scrutiny, i.e., whether the provisions are reasonably related to a legitimate pedagogical concern.

In construing the first and second provisions - - - banning courses that  "promote the overthrow" or "promote resentment" - - -  he stressed a narrow reading of the word "promote."  He also ruled that the exception for "historical oppression" (in the savings clause section F) keeps "the proscription from crossing the constitutional line."  

However, he held that the third subsection - - - "Are designed primarily for pupils of a particular ethnic group" - - - could not be similarly saved.  He noted that this provision does not promote any legitimate interest that is not already covered by the second provision, and could "chill the teaching of legitimate ethnic studies courses." 

He returned to his narrow reading to uphold the fourth provision - - - "advocate ethnic solidarity:"

Thus, if the statute simply proscribed courses that taught ethnic solidarity, without any reference to the treatment of students as individuals, it likely would not survive even the most deferential scrutiny. The provision, however, is more narrowly tailored than an outright ban on the teaching of ethnic solidarity. Instead, the statute prohibits the “advocacy” of ethnic solidarity “instead of the treatment of pupils as individuals.” By phrasing this provision in the alternative, and by restricting only the direct “advocacy” of ethnic solidarity, the provision is at least reasonably related to legitimate pedagogical concerns.

Judge Tashima disposed of the Equal Protection and Due Process challenges with much more expediency.  Regarding Equal Protection, he found that the statute did not make an express racial classification, and although there were "red flags"  and "some aspects of the record may be viewed to spark suspicion that the Latino population has been improperly targeted" that "on the whole, the evidence indicates" that it was the program and not "Latino students, teachers, or community members who supported or participated in the program" that was the issue.  Regarding Due Process, Judge Tashima concluded in a paragraph that there was no prima facie showing.

It seems likely that an appeal to the Ninth Circuit will be forthcoming.

RR
[image: 1860 map of Tucson area via]

March 11, 2013 in Due Process (Substantive), Equal Protection, First Amendment, Fourteenth Amendment, Opinion Analysis, Race, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, March 7, 2013

Idaho District Judge Holds Portions of State's Abortion Law Unconstitutional

In the latest chapter of McCormack v. Hiedeman, District Judge Lynn Winmill issued a 42 page opinion (Memorandum Decision and Order) yesterday holding various provisions in Idaho's abortion law unconstitutional, including the 20 week pregnancy ban unconstitutional.

Agrippine_de_Claude_MellanRecall that the Ninth Circuit last year found that Idaho's prosecution of McCormack for "self-abortion" constituted an undue burden and was unconstitutional.  McCormack, who purchased abortion "medications" over the internet, was the subject of an excellent indepth article which we discussed here. At that time, it seemed as if the case was concluded.

However, Judge Winmill rejected the prosecutor's argument that the case was moot, noting that a party "cannot conjure up mootness by ceasing the challenged conduct only for practical or strategic reasons - - - such as avoiding litigation."  The judge further held that the prosecutor's promise not to prosecute would not bind his successors and that his subsequent offer of transactional immunity to McCormack was not timely or binding.  Further, the judge noted that pregnancy is "capable of repetition yet evading review."

Judge Winmill also held that the physician in the case had standing, including to assert his patients' constitutional claims.

On the merits, Judge Winmill held that the self-abortion provision is a substantial obstacle and therefore unconstitutional, adopting the Ninth Circuit's reasoning.

Judge Winmill also held unconstitutional the provisions imposing criminal liability on abortion providers who perform first trimester abortions outside a hospital or a properly staffed and equipped office or a clinic and requires that “physicians have made satisfactory arrangements” for emergency hospital care.  The judge accepted the physician's argument that the terms “properly” and “satisfactory” are unconstitutionally vague therefore placing an undue burden on women seeking first trimester abortions. There is some confusion in the judge's reliance on Gonzales v. Carhart in this passage, but the judge finds that the Idaho statute is not sufficiently specific.

Additionally, the judge found unconstitutional the Idaho provisions  banning abortions at twenty weeks in PUCPA, the Pain-Capable Unborn Child Protection Act.  He reasoned that PUCPA does not contain mention the health or safety of the pregnant woman, that its only purpose was to limit the available options for the woman, and that the legislature cannot place viability at a set point. 

Given this opinion, it is likely that McCormack v. Heidman will be returning to the Ninth Circuit.

RR
[image via]

March 7, 2013 in Abortion, Due Process (Substantive), Family, Fourteenth Amendment, Gender, Medical Decisions, Opinion Analysis, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Monday, February 25, 2013

Daily Read: Dimock on Torture, Music, and Literature

Peter Dimock's just published book, George Anderson: Notes for a Love Song in Imperial Time, is a novelistic intervention in contemporary anguish about the legality of torture. 

9781564788016In a starred review, Publishers Weekly explains,

The novel takes the form of a letter from Theo Fales, editor and memoir ghostwriter for former CIA operatives, to David Kallen, a government official who directed Special Forces trainers to torture him before signing a document that led to the legalization of torture by the George W. Bush administration. Fales attempts to teach Kallen a method he devised as a, "means by which every person rids the self of its inordinate attachment to empire and creates reciprocity."

It's a brief but challenging book, interweaving music and literature to interrogate the roles of lawyers and journalists regarding the use of torture.   It is worth a read by anyone exploring how the constitutionality of "enhanced interrogation" should be decided.

RR

 

February 25, 2013 in Books, Due Process (Substantive), Executive Authority, News | Permalink | Comments (0) | TrackBack (0)