Constitutional Law Prof Blog

Court Dismisses Challenge to Amtrak's Authority to Develop Standards

Judge James E. Boasberg (D.D.C.) rejected the plaintiff's claims that Congress improperly delegated authority to Amtrak to develop and enforce passanger railway standards in violation of due process and nondelegation principles and granted summary judgment to the government in Association of American Railroad v. Department of Transportation.  The ruling affirms Amtrak's role in standard-making under the Passenger Railroad Investment and Improvement Act of 2008 and upholds Section 207 of that Act.

Section 207 requires the Federal Railroad Administration and Amtrak to jointly develop standards to evaluate the performance of Amtrak's intercity passenger trains.  It says:

[T]he Federal Railroad Administration and Amtrak shall jointly, in consultation with the Surface Transportation Board, rail carriers over whose rail lines Amtrak trains operate, States, Amtrak employees, nonprofit employee organizations representing Amtrak employees, and groups representing Amtrak passengers, as appropriate, develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations, including . . . on-time performance and minutes of delay . . . .

Under the Act, if the STB determines that Amtrak's failure to meet the standards is attributable to a rail carrier's failure to provide preference to Amtrak over freight transportation--that is, if a freight train makes an Amtrak train late--the STB may award damages against the host rail carrier.  (Amtrak leases the rail lines that it uses from freight rail carriers.)

The AAR, representing its member freight rail carriers, sued the DOT, arguing that Section 207 violated due process, because it allowed a private, interested party, Amtrak, to regulate other industry participants.  The AAR also argued that Section 207 effected an unconstitutional delegation of regulatory authority to a private entity.

The claims assumed that Amtrak was a private corporation--and the case thus turned on that assumption in the first instance.  But Judge Boasberg, drawing on Lebron v. National Railroad Passenger Corporation (1995), concluded that Amtrak was a governmental entity, at least as to the due process claim.  Here's what he wrote:

The two hallmarks of government control that the Lebron Court found decisive--namely, that Amtrak was created by special law for the furtherance of governmental objectives and that the government retained the authority to appoint a majority of directors--moreover, has not changed.  Indeed, when Lebron was decided, the President appointed only six of Amtrak's nine directors; he now appoints eight of the nine.   The government, moreover, retains more than 90% of Amtrak's stock, appropriates for Amtrak more than a billion dollars annually, and sets salary limits for Amtrak's employees.  In addition, Amtrak is required to submit annual reports to Congress and the President.

Op. at 11-12.  Because Amtrak is a government entity, Judge Boasberg concluded, Congress did not delegate rulemaking authority to a private entity in violation of due process.

As to the delegation claim, Judge Boasberg concluded that Amtrak's status as a private corporation or government entity didn't matter, because the government retained ultimate control over the standards (even if Amtrak was involved in the process).  

While the AAR is correct that [Section 207] in a sense makes Amtrak the FRA's equal--as opposed to its subordinate--Amtrak cannot promulgate the Metrics and Standards without the agency's approval. . . .

Conditioning regulation on a private party's assent . . . is not constitutionally problematic.  Indeed, the Supreme Court has reasoned that through such schemes the government "merely place[s] a restriction upon its own" ability to regulate.

Op. at 18-19.

SDS

PRENDA - The Sex Selection Anti-Abortion Bill Fails to Pass House of Representatives, But . . . .

As the Washington Post reports, members of the House of Representatives "voted 246 to 168"  on PRENDA, HR 3541, the Prenatal Non-Discrimination Act, that bans sex-selective and race-selective abortions.  While the 246 majority voted for PRENDA, it "failed to pass as House Republicans brought it up under a suspension of normal rules that required it to earn a two-thirds majority vote."

PRENDA defines "‘‘sex-selection abortion’’ as an "abortion undertaken for purposes of eliminating an unborn child of an undesired sex," and ‘‘race-selection abortion’’ is "an abortion performed for purposes of eliminating an unborn child because the child or a parent of the child is of an undesired race."  The bill is similar to one in Arizona that did become law; the few other states that do have statutes focus on sex-selection.

As I've written elsewhere:

The specter of sex-­selection prohibitions in abortion statutes is said to pose a political dilemma for feminists,who can be “torn” between “support for reproductive autonomy” and “distaste for sex-­‐selection practices driven by a gendered and patriarchal society.” It also provokes opposing logical constructions. On one account, if there is right to an abortion for any or no reason, this includes a right to an abortion even for a problematical reason.165 On an opposing account, “[t]he right to not have a child for any reason does not logically encompass the right not to have a child for any specific reason.”  Whatever the logic, however, an interrogation of a woman’s “reason” for having an abortion demonstrates a distrust of women similar to the distrust apparent in other abortion restrictions that treat women have abortions quite differently than ungendered patients providing informed consent for other medical procedures. However, unlike other abortion restrictions such as mandatory ultrasounds or waiting periods, sex-­‐selective prohibitions are not cast as being beneficial to women or assisting decision-­‐ making; rather, they clearly seek to remove the power of a woman’s choice to terminate a pregnancy in service to a larger societal and state interest.

Indeed, PRENDA's findings on sex include:

(subsection L) Sex-selection abortion results in an unnatural sex-ratio imbalance. An unnatural sex- ratio imbalance is undesirable, due to the inability of the numerically predominant sex to find mates. Experts worldwide document that a significant sex-ratio imbalance in which males numerically predominate can be a cause of increased violence and militancy within a society. Likewise, an unnatural sex-ratio imbalance gives rise to the commoditization of humans in the form of human trafficking, and a consequent increase in kidnapping and other violent crime.

PRENDA bases this finding on the experience of nations such as China, mentioning "son preference" but not China's accompanying one-child policy.  For some, the interest in prohibiting sex-selective abortion is a "manufactured controversy."  For others, PRENDA may be part of an election year strategy.

For those teaching a summer course in ConLaw, this could be the basis of an excellent problem.  ConLawProfs might want to also consider the constitutional provisions on which Congress grounds its power, including the Thirteenth Amendment.

RR

Press, Protest, and Prosecution: Constitutional Limits in Santa Cruz?

Two Indybay photojournalists are seeking dismissal of charges against them including conspiracy to commit vandalism/trespass in conjunction with an Occupy event in an otherwise vacant building in Santa Cruz last November. 

According to the motion to dismiss filed by the defendants, Bradley Stuart Allen and Alex Darocy, were singled out.  They aver that they were only in the building a short time and only some of the persons in the building for the four night occupation were prosecuted.  Indeed, they argue that during "the four days, at least one member of the Santa Cruz City Council entered the building, but she was not among those charged with any crimes" and likewise a "photographer from the Santa Cruz Sentinel, (the County’s principal newspaper) also entered and took photographs, but he has not been charged."  They therefore argue that the charges are selective prosecution in violation of the Equal Protection and Due Process Clauses.

The ACLU of Northern California has filed an amicus brief in support of the motion to dismiss on the grounds of the First Amendment.  The ACLU memo focuses on "vicarious liability" and finds especially problematical statements offered by the State at the preliminary hearing such as the defendants “were there to publicize the protest for the group. The photographs they took, the articles they posted... The defendants served as the public information officers for the occupiers ....” 

The ACLU memo argues that the defendants are entitled to First Amendment protections: "the constitutional protections for the press extend beyond the institutional press to anyone who would gather information about matters of public interest and disseminate it to the public, citing both Citizens United v. Federal Election Com'n, and the recent First Circuit case of Glik v. Cunniffe.  Moreover, "the Occupy movement, and the actions of November 30, are clearly newsworthy; indeed, advocacy for social and political change lies 'at the core of the First Amendment.'"

At the heart of the ACLU's argument is the contention that "had they published photos that portrayed the Occupiers in a bad light the government could not be making these arguments and, accordingly, would likely not be prosecuting them."  Thus, the ACLU argues that it is the "content and viewpoint of their reporting" that has resulted in the prosecution.

The ACLU's First Amendment argument of viewpoint/content discrimination under the First Amendment is parallel to the Defendant's argument of selective prosecution violative of the Equal Protection and Due Process Clauses.

The hearing is set for May 8.

RR
[h/t Trial Insider]
[image: May 4 Rally for Charges to be Dropped by Prosecutor Bob Lee via]

United States Supreme Court Extends Strip Search Authority

In a much-anticipated opinion today, the United States Supreme Court in Florence v. Board of Chosen Freeholders of County of Burlington (NJ), upheld the authority of jail authorities to strip search a person accused of a minor crime.

The case involved a claim for damages by Albert Florence, an African-American man stopped for a traffic infraction who was then taken to jail because of a years-old failure to appear charge.  Upon his detention at two different jails, Mr. Florence was stripped searched at each. More explanation from Florence and his attorney is in the video below:

 

Writing for the 5-4 majority, Kennedy's relatively brief opinion could be summed up in a single word: deference. 

Two of the five justices in the majority - - - Alito and Roberts - - - wrote separate concurring opinions that stressed the limits of the Court's opinion.  Alito phrased it thusly:

    I join the opinion of the Court but emphasize the limits of today’s holding. The Court holds that jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by correctionsofficers. To perform the searches, officers may direct the arrestees to disrobe, shower, and submit to a visual inspection. As part of the inspection, the arrestees may be required to manipulate their bodies.
    Undergoing such an inspection is undoubtedly humiliating and deeply offensive to many, but there are reasonable grounds for strip searching arrestees before they are admitted to the general population of a jail.

He later added that:

It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population.

Justice Breyer, dissenting and joined by Ginsburg, Sotomayor, and Kagan, provides numerous examples of problematical, humiliating, and unnecessary strip searches, noting that the majority failed to discuss specifics.  Instead, Breyer writes, the "majority is left with the word of prison officials in support of its contrary proposition. And though that word is important, it cannot be sufficient." 

But if the Court's single word is "deference," then of course the jail officials word is almost always sufficient.

RR

Arkansas Statute Criminalizing Student-Teacher Sex Held Unconstitutional

Ark. Code Ann. § 5-14-125(a)(6) (Repl. 2009) provides that a person commits sexual assault in the second degree if the person is a teacher in a public school in a grade kindergarten through twelve (K-12) and
engages in sexual contact with another person who is:
        (A) A student enrolled in the public school; and
        (B) Less than twenty-one years of age.

In a 4-3 opinion, the Arkansas Supreme Court in Paschal v. State declared the statute unconstitutional as applied to the criminal conviction of David Paschal, a high school teacher, for a "months-long sexual relationship" with an eighteen-year-old student.  Pashal had been sentenced to ten years’ imprisonment
on each of three sexual-assault convictions and given ten years’ suspended sentence for a fourth sexual-assault conviction.

Pashal relied upon Lawrence v. Texas as well as interpretations of the Arkansas Constitution protecting adult consensual sex.  While the Arkansas court had previously upheld the criminalization of sex by a member of the clergy who is "in the position of trust or authority over the victim and uses the position
of trust or authority to engage in sexual intercourse or deviate sexual activity,"  the court here noted that § 5-14-125(a)(6) was a "strict liability" statute that did not mention trust or authority. 

It was on this interpretation of the statute that the majority and dissent bitterly disagreed.  The majority opinion, footnote 10, stated: "We find appalling the statement from one of the dissenting justices that the majority’s interpretation of the statute condones a teacher’s misuse of trust or authority."  Later in the same footnote the majority writes that the "dissent's manufacturing" of the issue of the teacher's awareness of a position of authority "is both injudicious and irresponsible."

Essentially, the majority found persuasive the fact that the victim was an adult.  The state conceded the sexual relationship was consensual, and without more, the statute was unconstitutional as applied.

RR
[image: "The Schoolmaster" by Charles Green circa 1875 via]

Sixth Circuit on Joe The Plumber's Lawsuit for Constitutional Violations

"Joe the Plumber," as Samuel Joseph Wurzelbacher (pictured left) became known, gained public exposure when he interacted with Presidential Candidate Obama in October 2008 and later endorsed the Republican Candidate John McCain.  Wurzelbacher, a resident of Ohio, alleged that state officials accessed state databases to retrieve information about him, including his child support and unemployment records. 

In its opinion in Wurzelbacher v. Jones-Kelley, the Sixth Circuit affirmed the district judge's judgment on the pleadings in favor of the defendants.

On his First Amendment retaliation claim, Wurzelbacher failed to meet the standard requiring allegations that:
(1) the plaintiff engaged in constitutionally protected conduct;
(2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and
(3) the adverse action was motivated at least in part by the plaintiff’s protected conduct.

The Sixth Circuit found that Wurzelbache's general claims of emotional distress caused by his knowledge that databases had been searched for his name was inadequate to allege the necessary adverse action.  Importantly, any information gleaned from the database searches was never disclosed.  Even if this was an "adverse action," it was not the kind of action that would deter a "person of ordinary firmness" from continuing to speak.

Wurzelbacher similarly failed to allege sufficient facts for a violation of his Fourteenth Amendment informational privacy rights.  For the Sixth Circuit, these informational privacy rights must meet the substantive due process standard that “the interest at stake relates to those personal rights that can be deemed fundamental or implicit in the concept of ordered liberty.”  

Wurzelbacher may not be a trail-blazing opinion, but it does demonstrate the lack of constitutional remedy for state officials "doing research" on a person who has come to their attention for political reasons.

RR
[image: Samuel Joseph Wurzelbacher, circa 2008, via]

Fifth Circuit En Banc: No Constitutional Liability for School's Allowing Nonauthorized Adult Access to Nine Year Old During School Day Leading to Sexual Assault

It happened more than once.
Six times, according to the complaint's allegations.  The school allowed a man to "check out" the nine year old Jane Doe from school and return her later in the day on six separate occassions, simply signing her out as her father, and once as her mother.  The man was not on the "permission list," was not related to Jane Doe, and the school employees did not ask for any identification or check the "permission list."  The man took Jane from school, sexually molested her, and then returned her to school.

On these horrific facts, a panel of the Fifth Circuit in Doe v. Covington County School District found that the special relationship test of DeShaney v. Winnebago County, 489 U.S. 189 (1989) was met.   As we discussed last August, that panel holding was over a vigorous dissent by Judge Carolyn Dineen King.

In the en banc opinion Judge King wrote for a majority of the court, vindicating her previous dissenting opinion.

King's opinion for the en banc Fifth Circuit takes a formal tone and expresses little sympathy for Jane Doe.  The en banc opinion seems to brook no possibility that DeShaney can be overcome in a public school system.  Indeed, the outrage of the Judges who joined the majority seems to be reserved for the possibility of any other view.  As Judge Jolly stated, concurring:

    There is no room–not an inch–for confusion. The law yesterday and today is bare and bald: No DeShaney special relationship exists between a public school and its
students. Absent a special relationship, any analysis of the defendant’s conduct
as deliberately indifferent to the rights of the student is, under DeShaney, irrelevant.
    No further panel of this court should require us to iterate these clear
statements of the law a fourth time.

The en banc opinion explained this view:

When a state incarcerates a prisoner, institutionalizes a mental health patient, or places a child in foster care, the state knows that it has restricted the individual’s liberty and rendered him unable to care for his basic human needs. When a school employee carelessly fails to ensure that an adult is authorized to take an elementary student from the school, no state actor has knowledge that the school has thereby restricted the student’s liberty, because the adult taking the student from school may or may not be authorized.

Jane Doe's age is irrelevant:  "No matter the age of the child, parents are the primary providers of food, clothing, shelter, medical care, and reasonable safety for their minor children. Thus, school children are returned to their parents’ care at the end of each day, and are able to seek assistance from their families on a daily basis, unlike those who are incarcerated or involuntarily committed."   

The en banc court also looked to the state-created danger test, noting that the Fifth Circuit had not adopted the test and even if it had, the complaint's allegations would not make out such a claim: "they do not demonstrate the existence of “an immediate danger facing a known victim,” but only the school's awareness of some "general deficiencies in the check-out policy" for students.   Again stressing that the problem was the school's check-out policies rather than what happened between the time Jane Doe was checked out and checked back into school, the Fifth Circuit en banc opinion held there was no "shocks the conscience" claim. 

Judges Weiner and Dennis, who wrote the majority panel opinion, were the sole dissenters from the en banc opinion.  They stressed Jane Doe's age as well as the fact that the incidents occurred during the school day, rather than at the end: "the majority never addresses just what it is that Jane’s parents conceivably could have done, or should have done, to safeguard her in this situation."

The en banc majority opinion's concluding paragraph states its holding in stark terms while purporting to provide some legal alternative:

In affirming the dismissal of the Does’ complaint, we do not suggest that
schools have no obligation to insure that their students remain safe from acts of
private violence. State law provides the appropriate legal framework to address
Jane’s injury. The question we have addressed is simply whether the school’s
failure to check Keyes’s [the molester's] identity and be certain that he was authorized to take Jane amounted to a constitutional violation. Supreme Court precedent, our precedent, and the decisions of every other circuit to address the special relationship exception compel this court to conclude that it does not. In addition, neither the state-created danger theory nor municipal liability provides a viable basis for recovery.

RR
[image: A School Girl by Myles Birket Foster via]

District Judge Finds Establishment Clause Violation for Trafficking Funding to Catholic Bishops

The opinion in ACLU of Mass. v. Sebelius, by District Judge Richard Stearns of the District of Massachusetts grants summary judgment on behalf of the ACLU in the controversial Catholic Bishops funding case under the TVPA.

At issue is implementation of the TVPA, the Trafficking Victims Protection Act, 22 USC §7101-7112 (2000).  Congress appropriated funds and directed the Secretary of HHS to “expand benefits and services to victims of severe forms of trafficking in persons in the United States.”  HHS first accomplished this by making grants to nonprofit organizations that worked with trafficking victims, but in 2005 decided it would delegate this task to an independent contractor to administer the funds. 

Only two organizations bid for the role of “independent contractor,” both of which are religious organizations.  The winner of the independent contractor bid was United States Conference of Catholic Bishops (USCCB).  This was despite the USCCB’s frank statement in its proposal that “as we are a Catholic organization, we need to ensure that our victim services are not used to refer or fund activities that would be contrary to our moral convictions and religious beliefs,” and therefore “subcontractors could not provide or refer for abortion services or contraceptive materials for our clients pursuant to this contract.”  This statement did raise concerns, and although HHS asked whether USCCB could abide by a “don’t ask, don’t tell” policy with regard to the exception, the USCCB essentially rejected that possibility.  It stated it would require an assurance form all subcontractors regarding compliance.

    Nevertheless, HHS awarded USCCB the contract, and it was renewed four times, for a total of almost $15 million. 

     The ACLU sued, arguing that the USCCB contract violated the Establishment Clause, because the government was allowing the USCCB to impose religious restrictions on taxpayer funds. The present secretary of HHS, Sebelius, contended that the ACLU lacked standing, that the case was moot, and that on the merits, there was no Establishment Clause violation.

    On standing, the judge rejected the government’s argument that standing was foreclosed by Arizona Christian School Tuition Organization v. Winn (2011), noting that this case involves an expenditure, and not a tax credit as in Winn.

     On the merits, the judge applied the well-known “Lemon test:” First, the statute must have a secular legislative purpose; Second, its principal or primary effect must be one that neither advances nor inhibits religion; Finally, the statute must not foster “an excessive government entanglement with religion.”  The judge also discussed the endorsement test, rejecting the argument that the endorsement inquiry is not relevant to funding, but only applicable in cases of religious displays. The judge noted that the reproductive limits in the contracting scheme were absolutely linked to religion: “there is no reason to question the sincerity of the USCCB’s position that the restriction it imposed on its subcontractors on the use of TVPA funds for abortion and contraceptive services was motivated by deeply held religious beliefs.”  Thus, the government’s delegation of authority to USCCB as an independent contractor provides a significant benefit to religion.

     Judge Stearns explicitly addressed the possibility that his opinion would be controversial, especially in light of rhetoric regarding hostility to religion: 

“I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies.”  That conviction remains unshaken. To insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others.

The case is sure to be appealed. 

RR

Saturday Evening Review: What Would Elizabeth Cady Stanton Say?

Feminist icon Elizabeth Cady Stanton (pictured right) is frequently portrayed as an anti-abortion.  For example, bills such as The Susan B. Anthony and Frederick Douglass Act of 2011, H.R. 3541, and The Elizabeth Cady Stanton Pregnant and Parenting Students Services Act of 2005, S.1966, H.R. 4265, co-sponsored by 2012 Republican Presidential candidate Rick Santorum, sought to limit abortion and other reproductive rights in the name of Stanton (as well as anti-slavery hero Frederick Douglas).   Stanton's supposed anti-abortion views are also frequently cited in Supreme Court briefs to defeat an argument that abortion is central to women's rights by noting that early feminists were against the practice.

But was Stanton actually anti-abortion?

Professor Tracy Thomas argues that Stanton is an unlikely - - - and inappropriate - - - poster woman for the contemporary anti-abortion movement in a new paper entitled Misappropriating Women’s History in the Law and Politics of Abortion.   According to Professor Thomas, Stanton "did not talk about abortion per se" and "did not respond to the public campaign for the criminalization of abortion led by the medical profession with attacks on the growing autonomy of women."   Instead,

Stanton turned this debate to her priority of women’s rights, framing the question as one of the “elevation of woman” through equal legal and social rights. Stanton’s theory of “enlightened motherhood” placed women as the “sovereign of her own person” with sole responsibility for deciding when and under what circumstances to bear children. She defended women accused of infanticide, exposing the gendered legal system of all-male juries, legislatures, and judges that condemned them. Stanton’s life work labored for radical change to the patriarchy of society seeking liberal legal reforms of equal rights for women. Her ideology was about the “self-sovereignty” of women and against the regulation of women by men or the law.

Of course, Stanton was not one of the framers of the Fourteenth Amendment and indeed, she refused to support the Amendment given its exclusion of women.  Nevertheless, Stanton's "originalist" views on the rights of women are often invoked and Tracy Thomas has provided vital historical sources, analysis, and arguments regarding Stanton's position. 

Thomas' article is sure to provoke its own analysis and arguments, and equally sure to be an important contribution in contemporary debates regarding the legal regulation of abortion.  It's a must-read for any scholar working on this controversial constitutional area.

RR
[image of Elizabeth Cady Stanton circa 1880 via]

Georgia History and the 14th and 15th Amendments

On March 8, 1957, the Georgia legislature argued that "the continued recognition of the 14th and 15th Amendments as valid parts of the Constitution of the United States is incompatible with the present day position of the United States as the World's champion of Constitutional governments resting upon the consent of the people given through their lawful representatives," and passed a MEMORIAL TO CONGRESS -- FOURTEENTH AND FIFTEENTH AMENDMENTS TO U.S. CONSTITUTION BE DECLARED VOID.

The remainder of the Memorial can be read here.

RR
(h/t Diane Marie Amann via)

 

DOMA Held Unconstitutional - - - Yet Again

This time, the opinion comes from federal District Judge Jeffrey White in Golinski v. United States Office of Personnel Management.   Golinski is a staff attorney with the Ninth Circuit and in 2009 Chief Judge Kozinski ordered that Golinski's health benefits form listing her same-sex partner as wife be submitted by federal personnel authorities.  The DOJ since decided not to defend the constitutionality of DOMA and such actions are being defended by BLAG - - - the Bipartisan Legal Advisory Group of the United States House of
Representatives.

Golinski, a federal employee and described by the court as "a lesbian woman married under California law, who is unable to secure federal health benefits for her same-sex spouse," challenged Section 3 of DOMA as a violation of equal protection and due process under the Due Process Clause of the Fifth Amendment.  Under equal protection doctrine, the court looked at the "various factors" to determine the level of scrutiny the sexual orientation classification merited:

• the history of invidious discrimination against the class burdened by the legislation;
• whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society;
• whether the distinguishing characteristics are “immutable” or beyond the class members’ control;
• the political power of the subject class

After finding that there was no definitive precedent regarding the level of scrutiny that should apply, and applying the factors, the judge specifically held "that gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority." 

In applying the heightened scrutiny standard, the judge considered the animus expressed by certain members of Congress in DOMA's legislative history, the judge then analyzed the government's stated interests: responsible procreation and child-rearing; nurturing the institution of traditional, opposite-sex marriage; defending traditional notions of morality; and preserving scarce government resources.  For each interest, the judge concluded that that it did not "provide a justification that is substantially related to an important governmental objective."

The opinion then engaged in an "alternative analysis" under rational basis review - - - and also applied this to the BLAG's proffered additional hypothetical rational bases for passing DOMA:

• Congressional caution in defining a legislative term and maintaining the status quo
• Congressional caution in area of social divisiveness
• Consistency
• Any other possible basis

With many references to Judge Tauro's 2010 opinions holding DOMA unconstitutional, Judge White similarly decided that these post-DOMA rationales do not satisfy rational basis.

Judge White's conclusion considers the broader issues, including separation of powers and judicial review, in context:

    The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

Prejudice, we are beginning to understand, rises not from malice or hostile
animus alone. It may result as well from insensitivity caused by simple want of
careful, rational reflection or from some instinctive mechanism to guard against
people who appear to be different in some respects from ourselves.

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy,
J., concurring).
    This case was presented by an employee of the judicial branch against the executive
branch, which ultimately determined it could not legitimately support the law. The law was
then defended by the legislative branch. The judicial branch is tasked with determining whether this federal law is unconstitutional. That is the courts’ authority and responsibility. “It is emphatically the province and duty of the judicial department to say what the law is” and,where it is so, to declare legislation unconstitutional. See Marbury v. Madison, 1 Cranch 137, 177 (1803). As Supreme Court Chief Justice John G. Roberts said during his confirmation hearings: “Judges are like umpires. Umpires don’t make the rules, they apply them. ... it’s [the judge’s] job to call balls and strikes, and not to pitch or bat.” Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr.,
Nominee).
    In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right
to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.

Apart from the substance, Judge White's opinion is a model of organizational clarity.  For ConLawProfs looking for excellent opinions that demonstrate the organizational structure of equal protection doctrine, including alternative arguments, this is an opinion worth considering.

RR

First Circuit Rejects NOM's Challenges to Disclosure Laws Redux

In what the First Circuit calls the "second chapter" of challenges to the constitutionality of Maine's registration and disclosure laws regarding election-related advocacy, the court in National Organization for Marriage [NOM] v. McKee, essentially reaffirms its opinion last August in a case by the same name (and now to be known as NOM I).   The cases stem from the hard-fought same-sex marriage ballot initiative in Maine in 2009.  NOM II involves both NOM and American Principles in Action [APIA], although the court expressed doubt regarding APIA's standing as to some of the claims, and the principle arguments revolve around NOM.

The unanimous panel decision, authored by Judge Kermit Lipez, focuses on the "only substantively distinct issue" raised by this appeal as contrasted to NOM I:  the constitutionality of the definition of "contribution" in the "ballot question committee" [BQC] provision, Me. Rev. Stat. tit. 21-A, §1056-B.  The court concludes that the BQC provision, like the PAC provision at issue in NOM I survives the constitutional challenge.

The court quickly disposed of the First Amendment claims, on the basis of NOM I, but paid more attention to the assertion that the term "contribution" was unconstitutionally vague as a matter of due process, and that any reliance on subjective beliefs of a contributor were likewise void for vagueness. At issue were email communications such as:

"You can fight back! Can you help defend marriage in Maine and across the country, by donating $5, $10, or even, if God has given you the means, $100 or $500?"

The panel found that Maine can constitutionally require parties to determine whether or not a "reasonable listener would understand their advocacy as an invitation to contribute to a specific ballot question campaign"- - - such as that in Maine - - - based upon the specific earmarking words of the solicitor, in this case NOM.  

The court engaged in such reasoning after specifically faulting the appellants' attorneys for poor lawyering in terms of the as-applied challenges:

Appellants, however, do not address in their brief the vagueness problem with respect to donations received following any specific communication they distributed or proposed. Rather, they assert in conclusory language that subsections B and C of section 1056-B "are unconstitutionally vague as applied to most of Plaintiffs' speech." They make glancing reference to the content of the emails, noting that "some of NOM's solicitations mentioned Maine," and query whether, as a result of those mentions, donors' knowledge of the Maine ballot measure would be enough to make their donations covered "contributions" and NOM a BQC. They do not explain why they were unable, or would be unable, to link particular contributions received to their advocacy efforts on the Maine referendum, focusing their arguments instead on the language of the statute generally.

Thus, appellants are not only unable to bring a facial vagueness challenge to section 1056-B, but their failure to develop their as-applied challenges also would allow us to reject those claims summarily if we were so inclined. [citations omitted]. Given the importance of the issues raised, however, and the resources expended by all parties in this extensive litigation, we choose to explain why their vagueness contentions would in any event be substantially, if not entirely, unavailing. [citations omitted].

As the panel succinctly stated, it saw "no constitutional problem with expecting entities like appellants to make pragmatic, objective judgments about the nature of the contributions they receive where their own conduct and communications are the primary elements in the determination."

While NOM's attorney has reportedly vowed to take the case to the United States Supreme Court, there seems to be little here that would merit a grant of a writ of certiorari.

However, with the same-sex marriage issuepossibly again on the ballot in Maine in 2012, there may certainly be more litigation.

RR
[image via]

D.C. Court Rejects Due Process Claim in Immigration Case

Judge Ellen Segal Huvelle (D.D.C.) on Friday rejected a U.S. citizen's claim that the Secretary of the Department of Homeland Security, the Secretary of State, and the Consul General at the U.S. Consulate in Sydney violated her Fifth Amendment due process rights by rejecting her husband's application for a visa.

Plaintiff Shaghayegh Mostofi, a naturalized U.S. citizen, married Iranian citizen Shahriar Aghakhani and sought U.S. citizenship for Aghakhani based on the marriage.  The Consulate in Sydney rejected Shaghayegh's application, stating only that the "case is being refused under Section 212(a)(3) of the Immigration and Nationality Act."  That section allows exclusion of a visa applicant from the United States for any of six security-related grounds.  The Consulate did not reveal the precise ground for exclusion.

Mostofi sued, arguing that the exclusion violated her fundamental right to marry. 

Judge Huvelle wrote that a consular officer's decision to deny a visa is generally not subject to judicial review, because such decisions are within the exclusive purview of the political branches.  But this "consular nonreviewability" doctrine gives when a plaintiff asserts that the decision infringes on constitutional rights--at least in the D.C. Circuit, and the First, Second, and Ninth Circuits--based on Kliendienst v. Mandel (1972).

The problem here is that there was no violation of the right to marry--and thus no allegation of a constitutional violation.  Judge Huvelle wrote that "this Circuit, unlike the Ninth Circuit, does not recognize consular decisions affecting only the 'physical conditions' of marriage as implicating any constitutionally protected interest."  Op. at 7.

SDS

Fifth Circuit Vacates Preliminary Injunction of Texas Abortion Statute

Chief Judge of the Fifth Circuit Edith Jones, well known for her conservative affiliations, authored the panel opinion for the Fifth Circuit vacating a preliminary injunction of Texas HB 15, an Act “relating to informed consent to an abortion.”   The district judge had issued a preliminary injunction against seven subsections for violating the First Amendment or Fourteenth Amendment's due process clause encompassing vagueness principles. 

Judge Jones rejected the argument that the panel should defer ruling on the preliminary injunction given that the "district court has, notwithstanding this appeal, proceeded apace toward consideration of summary judgment" and therefore a "ruling on this interlocutory matter would become moot if the district court enters final judgment first."  In declining to defer, Jones wrote that "this ruling will offer guidance to the district court, which is particularly important given our different view of the case."   Should the district judge not hew to the Fifth Circuit's interpretation, a reversal is certain:  Jones also made clear that for "the sake of judicial efficiency, any further appeals in this matter will be heard by this panel."

Texas HB 15 requires a sonogram, a display of the sonogram to the pregnant woman, make audible the heart auscultation of the fetus for the woman to hear, and explain to her the results of each procedure and to wait 24 hours, in most cases, between these disclosures and performing the abortion.  A woman may only decline the explanation if her pregnancy is a result of a sexual assault or incest, she is a minor who has received a judicial bypass, or the fetus is abnormal. 

The district judge found sections of HB 15 unconstitutional as compelled speech, but the Fifth Circuit's review of abortion cases led it to three conclusions:

First, informed consent laws that do not impose an undue burden on the woman’s right to have an abortion are permissible if they require truthful, nonmisleading, and relevant disclosures. Second, such laws are part of the state’s reasonable regulation of medical practice and do not fall under the rubric of compelling “ideological” speech that triggers First Amendment strict scrutiny. Third, “relevant” informed consent  may entail not only the physical and psychological risks to the expectant mother facing this “difficult moral decision,” but also the state’s legitimate interests in “protecting the potential life within her.”

Applying these principles, the panel found that the sections of HB 15 "requiring disclosures and written consent are sustainable under Casey, are within the State’s power to regulate the practice of medicine, and therefore do not violate the First Amendment."

As to the three vagueness arguments under the Due Process Clause, Judge Jones found the first "novel" and "novelty suggests its weakness;" the second as not meriting the district judge's "skeptical interpretation"  and that the "legislature had every right to maintain the integrity" of its statutory scheme; and the third,   "at bottom, trivial." 

Judge Patrick Higginbottom's brief concurring opinion is worth reading in full, both for what it says and for what it does not say.  While it expresses some misgivings, it leaves little doubt of the result unless the case reaches the United States Supreme Court.

RR
[image: Judge Edith Jones, via]

The Constitutional Issues Facing Sheriff Joe Arpaio

Joe Arpaio, who styled himself as "America's toughest sheriff" in his 1997 book and the 2008 sequel is facing some tough constitutional times.  As elected sheriff of Maricopa County, Arizona, Arpaio has long been controversial for his immigration and prison "get tough" stances. 

The death yesterday of a Latino veteran who had been tased while in custody of the Maricopa County jails - - - informally called Arpaio's jails - - - might well result in a lawsuit.  

A complaint filed yesterday on behalf of a woman who was shackled while she giving birth also addresses problems at the jails.  In Mendiola-Martinez v. Arpaio, the plaintiff, a non-citizen, alleges she was imprisoned without bail for forgery when she was six months pregnant.  During her labor, she was transferred to the medical center, gave birth by Cesarean section, was shackled before and after the surgery, was discharged while bleeding, shackled hands and feet, and walking through the hospital only in her hospital gown, and was taken back to jail.  The complaint claims violations of the Eighth Amendment and Fourteenth Amendment regarding deliberate indifference to medical needs, cruel and unusual punishment, and a denial of Equal Protection under the Fifth, Fourteenth, and Fifteenth Amendments.  The last claim alleges liability under Monell v. New York City Dept. of Social Svcs., 436 U.S. 658 (1978), including a failure to train, supervise, and discipline employees. All these claims are buoyed by disapproval of the shackling of women in labor.  As a press release from Mendiola-Martinez's attorneys summarizes the law:

The American College of Obstetricians and Gynecologists and the American Medical Association oppose the shackling of women in labor or recuperating from delivery. In 2008, in Nelson v. Norris, the Eighth Circuit Court of Appeals found the shackling of women prisoners during labor to constitute cruel and unusual punishment, in violation of the Eighth Amendment. The Arizona Department of Corrections eliminated the practice of shackling women in labor or in postpartum recovery in 2003. In 2007, the United States Marshal’s Service eliminated the practice of shackling women in labor. In 2008, the Federal Bureau of Prisons eliminated the practice of shackling women in labor.

The immunity of Joe Arpaio will surely be raised by his attorneys.  The extent to which Arpaio is immune was also a question before the en banc Ninth Circuit last week in the unrelated case of Lacey v. Arpaio, in which reporters for the Phoenix New Times claim a violation of their First Amendment rights based in part on their midnight arrests.  The en banc hearing vacated the previous Ninth Circuit panel opinion, causing some consternation and confusion in the oral argument, available for viewing here.  Here's a synposis of the problem, via the Phoenix New Times, and verifiable by the video:

24:50 -- Sheriff Arpaio's lawyer Eileen GilBride gets her turn. At about 27 minutes, she begins to be hit with questions and hypothetical situations about the possibility of a conspiracy by the county officials. This stays interesting for several minutes.

38:30 -- GilBride's blunder: She doesn't realize that New Times has alleged a conspiracy because she apparently isn't familiar enough with the case. And she forgot the document that contains the part about the conspiracy allegation.

"You come to court without briefs?" Kozinski chides, waving some papers in the air.

GilBride plunges ahead on her bad recollection until called on it by Kozinski, who informs her that the conspiracy allegation is in the suit's opening brief.

40:15 -- The dress-down: "Coming to court without the briefs is poor lawyering in itself, but not knowing what's in the briefs is even worse," Kozinski says.

This could be a useful bit for ConLawProfs mentoring or judging moot court teams.

In addition to litigation woes, Sheriff Arpaio and the Maricopa County Sheriff's Office (MCSO) is again the subject of negative Department of Justice findings.  The December 15 letter concludes that the office has violated the First, Fourth, and Fourteenth Amendments to the United States Constitution, and has 60 days to take "clear steps" toward reaching an agreement with the Department of Civil Rights to remedy these violations, or there will be a civil suit seeking remedies.  This letter states it is unrelated to a previous investigation that it specifically references: an investigation concluding that unconstitutional conditions existed at the jails with respect to (1) the use of excessive force against inmates and (2) deliberate indifference to inmates' serious medical needs. An agreement between the United States and MCSO was reached in October 1997.  In this letter, police practices aimed at perceived immigrants are highlighted, with the letter concluding the practices " "are unconstitutional and are harming innocent Latinos."

The December 15 letter specifically focuses on Arpaio's role:

Sheriff Arpaio's own actions have helped nurture MCSO's culture of bias. For example, Sheriff Arpaio has frequently distributed racially charged constituent letters, annotating the letters with handwritten notes that appear to endorse the content of the letter, circulating the letters to others on the command staff, and/or saving the letters in his personal file. Many of these letters contain no meaningful descriptions of criminal activity-just crude, ethnically derogatory language about Latinos.

There is speculation that Arpaio will not run for relection as sheriff, as well as speculation he will run for the United States Senate.

RR
[Photo of Joe Arpaio of Maricopa County, Arizona speaking at the Tea Party Patriots American Policy Summit in Phoenix, Arizona, by Gage Skidmore, via]

Bill of Rights Day 2011

Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.

In his Presidential Proclamation last week, Obama stated:

On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.

Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.

Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.

Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."

The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights.  Instead, they concerned Congress itself:

Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The latter became the 27th Amendment, ratified more than two centuries later in 1992.

Still, it's a good day to reflect on the "Bll of Rights":

• Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
• Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
• Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
• Amendment 4.  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
• Amendment 5.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
• Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
• Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
• Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
• Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
• Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 

RR
[image from National Archives via] 

Constitutional Challenge to Hawai'i Marriage Law in Federal Court

The second wave of challenges to marriage laws excluding same-sex couples began in Hawai'i. The Baehr v. Lewin decision from the Hawai'i Supreme Court in 1993 that the opposite-sex policy was a sex classification subject to strict scrutiny under the state constitution set off a chain of events. In Hawai'i, there was a successful state referendum in Hawai'i retaining the power for the legislature to decide the sex of parties to a marriage.  Nationally, there was ultimately the federal statute DOMA (now in federal disfavor) as well as many other state DOMAs.  However, there were also developments in other states that resulted in the opposite-sex requirement being relaxed. 

The complaint in Jackson v. Abercrombie filed in the federal district of Hawai'i this week challenges the Hawai'i opposite-sex marriage requirement as violating the Due Process and Equal Protection Clauses of the Fourteenth Amendment.   The 27 page complaint includes an excellent chronology: a summary of the Hawai'i litigation and subsequent cases, including Perry v. Brown now before the Ninth Circuit.  The complaint also alleges that same-sex marriage has gained in popular acceptance since Baehr v. Lewin and that the civil union law, effective in Hawai'i in 2012, is not an adequate substitute for marriage.

Most likely, a district judge would wait for the Ninth Circuit decision in Perry, but presumably the state of Hawai'i will respond.

RR
[image: Hawai'i via]

 

Federal Cigarette Tax Likely Violates Due Process, but not Tenth Amendment

Chief Judge Royce C. Lamberth (D.D.C.) ruled on Monday in Gordon v. Holder that the tax requirement in the federal Prevent All Cigarette Trafficking Act, or PACT, likely violates due process, but not the Tenth Amendment.  Judge Lamberth also ruled that the PACT's ban on mailing cigarettes through the U.S. mail does not violate equal protection or due process.

Plaintiff Gordon owns and runs a cigarette retail business.  He previously took orders by mail and through the internet; since 2010, he takes only phone orders and walk-ins.  He challenged two provisions of the PACT: its ban on mailing cigarettes through the U.S. mail; and its requirement that remote cigarette sellers pay applicable state and local sales taxes in advance. 

Judge Lamberth ruled that Gordon's claim that the tax provision violates due process is likely to succeed.  Judge Lamberth concluded that Gordon didn't have sufficient contacts with some states where he sold cigarettes to satisfy the "minimum connection" test in Quill Corp. v. North Dakota (and borrowed from International Shoe Co. v. Washington).  Without the minimum connection, the tax provision likely violates due process.

But Judge Lamberth rejected Gordon's other claims.  Judge Lamberth wrote that the PACT's ban on sales of cigarettes through the U.S. mail satisifed rational basis review, and that the PACT's tax provision didn't commandeer states or their officers.  (Nothing in PACT compels states to adopt or to change their taxes.  Instead, the PACT simply compels cigarette retailers to comply with applicable state taxes.)

Judge Lamberth thus issued a preliminary injunction against the tax provision on due process grounds, but denied a preliminary injunction on Gordon's other claims.

SDS

California Budget Cuts to Home Services May Violate Due Process

US District Judge for the Northern District of California, Claudia Wilken, has issued a brief opinion supporting a TRO against California's SB73, reducing most In Home Support Services (IHSS).

Judge Wilken wrote that the proposed notices regarding the reductions "raise serious questions of violations of the federal Due Process Clause," as well as violations of several federal statutory schemes by " by placing IHSS recipients at imminent risk of unnecessary and unwanted out-of-home placement, including in institutions such as nursing homes, board and care facilities, and psychiatric hospitals; by discriminating on the basis of type of disability; and by using methods of administration that will exclude individuals with disabilities from IHSS."

Judge Wilken concluded that the "balance of equities strongly favors Plaintiffs because Defendants’ only interest is fiscal, whereas the plaintiff class faces life or death consequences."   She set a briefing schedule, with a hearing most likely to be held on December 15.

An excellent discussion contextualizing the TRO by Marty Omoto of the California Disability Community Action Network is available here.

RR
[image: Disabled professional surfer Christiaan "Otter" Bailey of Santa Cruz, Ca.  via]

Alabama's HB56: Immigrants' Rights to Housing and to Marry

Portions of the Beason-Hammon Alabama Taxpayer and Citizen Protection Act, Act 2011-535 - - - more popularly known as HB56 - - - have been enjoined by the district judge in two very lengthy separate opinions in the companion cases of United States v. Alabama and Hispanic Interest Coalition of Alabama v. Bentley, and additional sections enjoined by the Eleventh Circuit.   However, new litigation continues to challenge aspects of Alabama's immigration scheme.

In the Complaint in Central Alabama Fair Housing Center v. Magee, housing advocacy groups challenge section 30 of HB56 that makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.   This "business transaction" apparently includes complying with other Alabama statutes that require "submitting a payment for the annual manufactured home registration fee and obtaining a current identification decal," as well as a permit to move a manufactured or mobile home.  

Thus, as United States District Judge Myron Thompson observed in his opinion granting a TRO, the challenge is an "as-applied" one that "raises a host of issues not considered" by the previous courts.  Judge Thompson focused on the preemption claim, finding a likelihood of prevailing on its merits.  He found that "the evidence reflects that the Alabama Revenue Department and the Elmore County Probate Office initially proposed to use their own, state-created alternative for determining whether, under § 30, an individual has adequately demonstrated his or her lawful citizenship status, but are now in the process of developing a new system that will comply with HB 56."   The process is thus very different from those in which employers utilize E-verify.  As the Judge stated,

What is clear is, first, that the defendants do not now have in place a definite process that will be in sync with federal immigration law and, second, that they will not have a process in place any time soon. The conclusion that the defendants’ current process (or, perhaps to be more accurate, lack of a definite process) conflicts with federal law is inescapable.

The TRO expires December 7, 2011.  A NYT editorial yesterday argued that HB56 is causing Alabama economic damage.

While the definition of "business transaction" in §30 of HB56 is broad, subsection(a) specifically exempts marriage licenses: "Business transaction" "does not include applying for a marriage license."  Yet another complaint filed in federal court, Loder v. McKinney, contends that probate offices charged with issuing such licenses are requiring proof of immigration status, despite previous opinions by the Alabama Attorney General.  As the complaint alleges, the probate court of Montgomery county lists the requirement of proof of "legal presence" on its website:

Requirements For Persons 18 years or older

Non-citizens of the United States must provide proof of legal presence in the United States in the form of valid immigration documents or passport.

Each applicant must provide one of the following:

                1. An official Picture ID (passport, military ID, State issued ID, Driver's License).
                2. An original certified copy of the state issued birth certificate (hospital copy not acceptable) and original social security card.
                3. U. S. Government issued Immigration Services Picture ID Card (green card, visa, alien resident card, etc.).

The complaint alleges a fundamental right to marry and a violation of the Fourteenth Amendment's due process and equal protection clauses.  More about the litigation is available on the Southern POverty Law Center's website here.

RR
[image via]