Friday, January 24, 2014

Can the Virginia Attorney General (Not) Do That? Analysis of the Virginia AG's decision not to defend the state same-sex marriage ban

 The Office of the Attorney General of Virginia, representing Janet M. Rainey, in her official capacity as State Registrar of Vital Records, has filed a Notice of Change of Position (and Memorandum in Support)  in Bostick v. Rainey, a case challenging the constitutionality of Virginia's same-sex marriage ban in federal district court.  

Herring-aug2The Complaint in Bostick, filed in September 2013, challenges both the Virginia Statute § 20-45.2. prohibiting marriages between persons of the same-sex (adopted in 1975) and the constitutional amendment, Article I, §15A, prohibiting not only marriages but other forms of relationship recognition, passed by ballot initiative in 2006.

The change of the state's position by Mark Herring, the newly elected Attorney General (pictured right) may have been unexpected in some quarters, but it replicates the United States Attorney General's decision not to defend the constitutionality of the Defense of Marriage Act (DOMA) as well as California Attorney General Jerry Brown's decision not to defend the constitutionality of Proposition 8.   Recall that in the Proposition 8 trial, Perry v. Schwarzenneger, the constitutionality of Proposition 8 was defended by intervenors including protectmarriage.com, who the trial judge described as the “proponents” of Proposition 8.  When district judge Vaughn Walker ruled that Proposition 8 was unconstitutional, an appeal ensued, followed by questions about whether the "proponents" has standing to appeal.  Importantly, an attempt to obtain a writ of mandamus to mandate Governor Schwarzenegger appeal was unsuccessful.  And also importantly, the United States Supreme Court, in Hollingsworth v. Perry, decided that the "proponents" did not have standing to appeal, thus ultimately leaving the district judge's opinion valid.

The Proposition 8 litigation is thus an object lesson in the perils of the government not defending the constitutionality of the state laws at trial - - - it might insulate a district judge's finding of unconstitutionality from appeal.

On the other hand, the United States Supreme Court did find that there was standing to appeal in the Defense of Marriage case, United States v. Windsor, despite the fact that the United States was not actually defending the constitutionality of the DOMA statute.  The Court narrowly found that BLAG, the Bipartisan Legal Advisory Group of the House of Representatives who had taken up the defense of DOMA, at a substantial cost to taxpayers, had sufficient status to confer standing, or at least the case provided "sufficient adversarial presentation for the Court to decide to get to the merits."  (Recall that the Court appointed ConLawProf Vicki Jackson to brief and argue BLAG's standing).

Thus. should some parties in Virginia seek to defend the state statutory and constitutional scheme, they should seek to approximate BLAG rather than a more private proponent, even if one could find some proponent for the 1976 statute.

Barring any state laws to the contrary, the Virginia AG surely has the power to make a determination that the state action is unconstitutional and thus decline to defend it.  But it could prove a risky business when it comes to any party having standing on appeal should the district judge agree with the plaintiffs and with the state that the state scheme prohibiting same sex marriage is unconstitutional.

January 24, 2014 in Current Affairs, Due Process (Substantive), Federalism, Interpretation, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Saturday, January 18, 2014

Daily Read: Jonathan Hafetz on Obama's NSA Speech

In the provocatively titled "Is Obama Failing Constitutional Law?" and subtitled "Talking and tinkering may not be enough to make the old law professor’s surveillance program legal" Law Prof Jonathan Hafetz (pictured below) assesses President Obama's January 17 speech over at Politico.

Hafetz-jonathan-lg_1

Here's Hafetz on the "mixed bag" of Obama's proposed reforms to the FISA court:

 The court currently operates in secret and hears only from the government, contrary to basic principles of due process. Obama said he would ask Congress to create a public advocate to argue for privacy concerns before the FISA court, as his advisory panel urged. But Obama did not clarify whether the advocate’s opportunity to argue would be left within the secret court’s discretion. Obama also rejected the panel’s recommendation to revise the method for selecting the court’s 11 members to create more balance. Presently, Chief Justice John Roberts alone decides the membership.

Worth a read, in addition to our take here and Cyrus Farivar over at Ars Technica.

January 18, 2014 in Criminal Procedure, Current Affairs, Due Process (Substantive), Executive Authority, First Amendment, News, Profiles in Con Law Teaching, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 15, 2014

Oklahoma's License Plate Survives Constitutional Challenge on Remand

Oklahoma District Judge Joe Heaton declined to find that the Oklahoma license plate violated the First Amendment or other constitutional rights of Keith Cressman in his  opinion in Cressman v. Thompson.

Recall that the Tenth Circuit, in a divided opinion in June 2013, held that Cressman had made plausible allegations that the symbol on the Oklahoma license plate - - - arguably the “Sacred Rain Arrow”  - - - could be the basis of a compelled speech claim, similar to the classic First Amendment case of Wooley v. Maynard.

But on remand, Judge Heaton found that the plate's image (pictured below and included as the final page on Judge Heaton's opinion) did not rise to the level of symbolic speech with a particularized message.  Although stating that there should be a broad interpretation, Judge Heaton nevertheless held:

Viewed by itself, all the disputed image involves is a depiction of a Native American shooting a bow and arrow. There is nothing about the image that suggests the man is praying or that the arrow he is shooting is sacred. There is nothing about the image that suggests he is worried about rain, or the lack thereof. There is nothing about the image that suggests he believes in one god, no god, or several. It simply depicts a Native American shooting a bow and arrow.

 

Houser
"Sacred Rain Arrow" sculpture by Allan Houser via

OK-Archer-Plate2Judge Heaton rejected the constitutional significance of the "other things" Cressman learned about the image through "research."  He opined that the "fact that additional research is necessary to know or identify the message of which plaintiff complains is itself “strong evidence” that the image, as such, is not subject to constitutional protection."  Further, the image on the license plate is "not an exact replica" of the "Sacred Rain Arrow” sculpture; the plate image has the arrow pointing at a 60 degree angle "a pose consistent with a variety of scenarios in which a bow and arrow might be used," while the sculpture "involves a Native American shooting his arrow almost vertically into the air, a pose which arguably is more suggestive of a spiritual motive or connection."

Additionally, Cressman did not object to the words "Native America" on the license plate, another distinction from Wooley v. Maynard's "Live Free or Die" New Hampshire license plate.

Judge Heaton's final paragraph expressed a lack of sympathy for Cressman along with a suggestion:

The absence of a constitutional violation does not, of course, mean that plaintiff lacks a practical solution to the problem as he sees it. Oklahoma provides a simple, inexpensive, and readily available alternative, in the form of a specialty plate, for those who object to any aspect of a standard plate, an option which plaintiff has exercised both before and since his concerns with the current standard license plate arose.

January 15, 2014 in Courts and Judging, Due Process (Substantive), Establishment Clause, First Amendment, Religion, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, January 13, 2014

Daily Read: Understanding Zablocki v. Redhail and "Marriage Equality"

The United States Supreme Court in Zablocki v. Redhail (1978) held unconstitutional a Wisconsin state statute requiring judicial permission for a marriage license for any person who had a support order for a minor. 

The opinion, authored by Justice Marshall, considers the case as one of equal protection and opines that

our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that "critical examination" of the state interests advanced in support of the classification is required.

 The Court also states that more recent decisions "have established that the right to marry is part of the fundamental "right of privacy" implicit in the Fourteenth Amendment's Due Process Clause," citing Griswold v. Connecticut.

Thus, although not as famous as Loving v. Virginia, Zablocki v. Redhail is also frequently cited in any argument that marriage is a fundamental right, notwithstanding the Court's qualification in Zablocki that "not every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny," but only ones that interfere directly and substantially with the right to marry.

In a new essay, Chronicle of a Debt Foretold: Zablocki v. Red Hail, by Tonya L. Brito, R. Kirk Anderson and Monica Wedgewood, forthcoming in The Poverty Law Canon and available on ssrn, the authors revive the importance of the wealth inequality relevance of the case and also reveal a racial aspect.  Redhail, whose name is actually Roger Red Hail, is a Native American man, now in his late 50s, who still owes child support for the child he fathered when he was 16.  Although the "child" is now in her 40s, he owes the money to state (with interest) and the state continues to garnish his wages.

Tribal

There is a possibility that Red Hail's pending child support cases now under the jurisdiction of Milwaukee County would be transferred to the Oneida Tribal Judicial System.

The essay is a must-read for anyone considering the constitutional ramifications of equality or marriage.

January 13, 2014 in Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, History, Reproductive Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, January 2, 2014

Scholarship Matters: Steve Sanders, The Right to "Stay Married," and Obergefell Opinion

In his opinion granting a final injunction in Obergefell v. Kasich, federal Judge Timothy Black addressed a particular enforcement of Ohio's limitation of marriage to opposite sex couples.   He also cited and relied upon an interesting conceptualization put forth by Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 Mich. L. Rev. 1421 (2011), available on ssrn. 

SandersAs the title indicates, Sanders argues that an individual who legally marries in his or her state of domicile, then migrates to another state, has a significant liberty interest under the 14th Amendment’s Due Process Clause in the ongoing existence of the marriage, as conceptually and doctrinally distinguishable from the constitutional “right to marry.”

Recall that the facts in Obergefell are especially sympathetic: one of the partners was a hospice patient and the relief requested regarded the martial status and surviving spouse to be recorded on the death certificate.  As NPR reported, the couple "chartered a special medical jet to Maryland, where gay marriage is legal, and held a simple ceremony on the runway.   And recall also that Judge Black's preliminary injunction opinion last July was one of the first after the Court decided United States v. Windsor, declaring section 3 of DOMA unconstitutional, and used Justice Scalia's dissent as part of the rationale for expanding Windsor.

Although Judge Black's preliminary injunction opinion certainly considered the effect of the out-of-state marriage, in the permanent injunction opinion, Judge Black constitutionalizes this conception:

In situations like those of Plaintiffs, however, where same-sex couples legally marry outside of Ohio and then reside in Ohio, a different right than the fundamental right to marry is also implicated: here, the constitutional due process right at issue is not the right to marry, but, instead, the right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections.

The footnote to this passage credits Steve Sanders article:

The concept of the right to remain married as a liberty interest protected by the Due Process Clause is eloquently advanced by Professor Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 MICH. L. REV. 1421 (2011). This judge acknowledges significant reliance upon Professor Sanders’s learned (and more extended) analysis of the fundamental right to remain married.

In the text of the opinion, Judge Black then quotes Sanders' article as stating, "In identifying the right to remain married as fundamental, Professor Sanders points out that the “[l]aw favors stability in legal relationships, vindication of justified expectations, and preventing casual evasion of legal duties and responsibilities.”

There is much talk about whether and when legal scholarship matters.  In our new "Scholarship Matters" series, we'll continue to note incidents of scholarly influence on legal doctrine.  

January 2, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Family, Fourteenth Amendment, Interpretation, Opinion Analysis, Scholarship, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Federal District Judge Upholds Most of New York's SAFE Act Against Second Amendment Challenge, Striking Some Provisions

In an opinion rendered on December 31, Judge William M. Skretny declared several provisions unconstitutional but upheld most of New York's SAFE Act in New York State Rifle and Pistol Association v. Cumo

Judge Skretny, Chief Judge of the United States District Court for the Western District, sitting in Buffalo, applied intermediate scrutiny under the Second Amendment,  drawing on the "post- Heller rulings that have begun to settle the vast terra incognita left by the Supreme Court."  He concluded that the SAFE Act's definition and regulation of assault weapons and its ban on large-capacity magazines further the state’s important interest in public safety, and do not impermissibly infringe on Plaintiffs’ Second Amendment rights.  However, he concluded that the seven-round limit did not satisfy intermediate scrutiny both on the governmental interest and the means chosen.

The plaintiffs also challenged ten specific provisions of the SAFE Act as void for vagueness and thus violative of due process:

  • “conspicuously protruding” pistol grip
  • threaded barrel
  • magazine-capacity restrictions
  • five-round shotgun limit
  •  “can be readily restored or converted”
  • the “and if” clause of N.Y. Penal Law § 265.36 g muzzle “break”
  •  “version” of automatic weapon
  • manufactured weight
  • commercial transfer

 The judge found three unconstitutional - - - the “and if” clause of N.Y. Penal Law § 265.36, the references to muzzle “breaks” in N.Y. Penal Law § 265.00(22)(a)(vi), and the regulation with respect to pistols that are “versions” of automatic weapons in N.Y. Penal Law § 265.00(22)(c)(viii) - - - concluding that these provisions were vague and "must be stricken because they do not adequately inform an ordinary person as to what conduct is prohibited."

The opinion also rejects the dormant commerce clause challenge to the provision of the SAFE Act that effectively bans ammunition sales over the Internet and imposes a requirement that an ammunition transfer “must occur in person.”  The government had argued that the challenge was not ripe given that the section does not go into effect until January 15, 2014, but Judge Skretny decided the question was one of mere "prudential" ripeness and that the claim should be decided.  Applying well-established dormant commerce clause doctrine, the judge found first that the SAFE Act did not "discriminate" against out of state interests and moving to the "balancing test" under Pike v. Bruce Church, Inc. (1970), the "incidental effects on interstate commerce" were not "excessive in relation to a legitimate local public interest."

788px-Ted_Noten_Murdered_Innocence_2005

Judge Skretny's 57 page opinion is scholarly and closely reasoned with specific findings.  Yet the Second Amendment issues certainly reflect the fact that there are no established standard for judicial scrutiny of the regulations of the "right to bear arms.  Recall that the Fifth Circuit's use of intermediate scrutiny in NRA v. AFT (regarding a federal restriction applying to persons less than 21 years of age)  and in NRA v. McCraw (regarding Texas restrictions also applying to persons less that 21 years of age) are both being considered on petitions for writs of certiorari by the United States Supreme Court.   Sooner or later, some sort of analytic framework for deciding Second Amendment issues will be established by the Court.  Until then, federal judges are left to navigate what Judge Skretny called the "vast terra incognita" of Second Amendment doctrine.

[image via]

January 2, 2014 in Courts and Judging, Dormant Commerce Clause, Due Process (Substantive), History, Interpretation, Opinion Analysis, Ripeness, Second Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, December 23, 2013

Ohio Federal Judge Issues Permanent Injunction in Ohio Same-Sex Marriage Case

In an opinion today in Obergefell v. Kasich, federal Judge Timothy Black (pictured) Timothy_Black_District_Judgeof the Southern District of Ohio issued a permanent injunction against a particular enforcement of Ohio's limitation of marriage to opposite sex couples.

Recall that in July, less than a month after the United States Supreme Court's decision in United States v. Windsor declaring DOMA unconstitutional, Judge Black enjoined Ohio's DOMA-type provisions (both statutory and in the state constitution) involving the recognition of a marriage that occurred out of state in an especially sympathetic situation involving a dying person.

In today's opinion, Judge Black - - - as he did in his previous opinion and as Judge Robert Shelby did in his opinion declaring Utah's ban on same-sex marriage unconstitutional - - - used Justice Scalia's dissent in Windsor as support:

In a vigorous dissent to the Windsor ruling, Justice Scalia predicted that the question whether states could refuse to recognize other states’ same-sex marriages would come quickly, and that the majority’s opinion spelled defeat for any state’s refusal to recognize same-sex marriages authorized by a co-equal state. As Justice Scalia predicted: “no one should be fooled [by this decision] ... the majority arms well any challenger to a state law restricting marriage to its traditional definition ... it’s just a matter of listening and waiting for the other shoe [to drop].” Windsor, 133 S. Ct. at 2710 (Scalia, J., dissenting).

The challenge before Judge Black is an as-applied-one relating to a specific couple, a death certificate, and an out of state marriage.

On the due process challenge, Judge Black concluded that "Ohio’s refusal to recognize same-sex marriages performed in other states violates the substantive due process rights of the parties to those marriages because it deprives them of their significant liberty interest in remaining married absent a sufficient articulated state interest for doing so or any due process procedural protection whatsoever."

On the equal protection challenge, Judge Black used a Carolene-type analysis to conclude that sexual orientation classifications merited heightened scrutiny.  However, he also decided that the Ohio marriage ban failed to satisfy even rational basis, both because animus was not a legitimate interest and because the non-animus legitimate interests asserted had no rational connection to Ohio's marriage recognition ban of same-sex couples. 

Although the final injunction is limited to this particular couple and relates to the death of one of the partners, its reasoning could undoubtedly apply in a facial challenge.

 

December 23, 2013 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Opinion Analysis, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, December 20, 2013

Utah Federal District Judge Declares State's Same-Sex Marriage Ban Unconstitutional

In his  opinion in Kitchen v. Herbert, federal district judge Robert Shelby held

that Utah’s prohibition on same- sex marriage conflicts with the United States Constitution’s [Fourteenth Amendment] guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.

Visiting_utahNotably, Utah has both a state statute and state constitutional amendment defining marriage as limited to "a man and a woman." 

The judge interestingly relied upon Justice Scalia's dissenting opinion in last term's decision in United States v. Windsor, which held §3 of DOMA unconstitutional:

The Constitution’s protection of the individual rights of gay and lesbian citizens is equally dispositive whether this protection requires a court to respect a state law, as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here. In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare . . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same- sex couples marital status.

133 S. Ct. at 2709 (citations and internal quotation marks omitted). The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.

Perhaps most controversially, Judge Shelby determines that marriage is a fundamental right and that restrictions on marriage merit strict scrutiny.  He further finds that there is no compelling governmental interest justifying the same-sex marriage restriction, unlike, for example, a regulation of the age at which a person may be married which is supported by the compelling state interest of "protecting children against abuse and coercion."

Judge Shelby's opinion on equal protection grounds is much less controversial, and perhaps even conservative.  Judge Shelby rejects the arguments - - - or at least the need for the arguments - - - regarding any sort of heightened scrutiny and resolves the case on rational basis review.  This rejection includes the arguments centering on animus as a non-legitimate state interest.  Instead, he concludes that the legitimate government interests that Utah cites are not rationally related to Utah’s prohibition of same-sex marriage.  These interests include the by now familiar ones of "responsible procreation," "optimal child-rearing,"  "proceeding with caution," and "preserving the traditional definition of marriage."

He ends with an extended analogy to Loving v. Virginia,  or more specifically, Virginia's arguments in the landmark case ruling the state's anti-miscengation law unconstitutional.  And after clearing declaring sections 30-1-2 and 30-1-4.1 of the Utah Code and Article I, § 29 of the Utah Constitution unconstitutional under the Fourteenth Amendment, enjoins their enforcement.

 

December 20, 2013 in Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 12, 2013

Daily Read: "Interest Creep" by Dov Fox

What is the government interest?

This simple query, even before one evaluates the interest (is it compelling? or even merely legitimate?), can be a vexing one for students, professors, litigators, and courts.   Legislative listing of such interests - - - whether in preambles, legislative history, or litigation - - - provides language but not necessarily meaning.

02c5688cd9ab2daa13288b5b3a4c43b5In his terrific article, "Interest Creep," (available on ssrn), Professor Dov Fox (pictured left) analyzes government interests in an array of constitutional cases.  His argument that the way that courts characterize government interests often shapes how cases are decided will hardly be surprising.  His contribution, however, is in his own characterizations and categorizations of the types of interests and their deployment.  His specific discussion of the government's interest in "potential life," expressed by the Court in Roe v. Wade, in contemporary abortion regulations about "fetal pain" and "sex/race selection" is stellar.

Ultimately, he argues that

Casual reliance on underspecified interests like potential life, national security, or child protection frustrates a constructive struggle about how best to make sense of the various plausible but distinct concerns that those shibboleths are invoked to capture over time and across contexts  Interest creep erodes adjudicative norms by impeding the capacity of litigants, judges, advocates, lawmakers, and citizens “to debate and to criticize the true reasons for [judicial] decisions."

Especially worth a read for anyone teaching or writing in the areas of reproductive rights.

November 12, 2013 in Abortion, Due Process (Substantive), Fourteenth Amendment, Medical Decisions, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

United States Supreme Court Refuses to Hear Oklahoma Abortion Case

The United States Supreme Court routinely rejects petitions for writs of certiorari, so today's denial in Pruitt v. Nova Health Systems is not especially noteworthy.  Nevertheless, given the Oklahoma Supreme Court's decision in 2012, which we discussed here, holding that Oklahoma's abortion law requiring an ultrasound was unconstitutional because of Planned Parenthood v. Casey, 505 U.S. 833 (1992), does seem meaningful. 

Its meaning is compounded by the Court's dismissal of the writ as improvidentally granted in Pruitt's companion case, Cline v. Oklahoma Coalition for Reproductive Justice, in which the Court certified a question to the Oklahoma Supreme Court regarding the interpretation of the abortion statute.

Thus, it seems as if the Court presently has no inclination to reconsider Casey.

800px-Panorama_of_United_States_Supreme_Court_Building_at_Dusk
 

 

 

November 12, 2013 in Abortion, Due Process (Substantive), Fourteenth Amendment, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Saturday, November 9, 2013

Federal Judge Upholds New Jersey's Prohibition of Sexual Conversion Therapy

Federal district judge Freda Wolfson has upheld the constitutionality of  New Jersey A3371 banning "sexual orientation change efforts" (SOCE), also known as sexual conversion therapy, on minors in her extensive opinion in King v. Christie. 

Brain painting

Recall that Chris Christie - - - now the recently re-elected Governor of New Jersey - - - signed the bill into law last August, accompanied by a signing statement, and that the plaintiffs, including 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”), argued that the statute 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.

The district judge found that the First Amendment challenges raised by the plaintiffs were the most serious ones, but also found that the statute restricts neither speech nor religious expression,  and that the statute survived rational basis scrutiny.

Regarding speech, Judge Wolfson concluded that on its face, the statute plainly regulates conduct, quoting the statutory language:

  “shall not engage in sexual orientation change efforts,” and further defines “‘sexual orientation change efforts” as “the practice of seeking to change a person’s sexual orientation.”

(emphasis in opinion).  She extensively discussed the Ninth Circuit's opinion in Pickup v. Brown, upholding a smiliar California statute prohibiting SOCE.  She briefly distinguished the federal district judge's opinion in Wollschlaeger v. Farmer declaring unconstitutional Florida's prohibition of physicians asking patients about gun ownership, noting that unlike the Florida law, the NJ statute "does not seek to regulate the conveying of information, only the application of a particular therapeutic method." She also confronted the implications of the plaintiffs' arguments:

there is a more fundamental problem with Plaintiffs’ argument, because taken to its logical end, it would mean that any regulation of professional counseling necessarily implicates fundamental First Amendment free speech rights, and therefore would need to withstand heightened scrutiny to be permissible. Such a result runs counter to the longstanding principle that a state generally may enact laws rationally regulating professionals, including those providing medicine and mental health services.

She likewise rejected the argument that there was sufficient expressive conduct to merit an analysis under the intermediate scrutiny standard of O'Brien, finding instead that rational basis was the appropriate standard and switching to a due process analysis, having "rejected Plaintiffs' First Amendment free speech challenge."  (footnote 22).  Not surprisingly, she finds this standard easily satisfied.  Relatedly, she easily concludes that the challenge to the term "sexual orientation" as vague and the challenge to the statute as overbroad are both without merit.

As to the free exercise of religion challenge, Judge Wolfson concludes that the statute is a neutral one of general applicability and rejects the argument that the statute's exceptions create a disproportionate impact on religious expression.  Again, she concludes that rational basis applies and for the same rationales discussed in the free speech analysis, the statute easily satisfies the standard.

In other matters, the judge found that the plaintiffs did not have sufficient Article III standing to raise the injuries to their minor clients and their parents.  On the other hand, the judge granted intervernor status to Garden State Equality.

The judge's opinion is a well reasoned one, and is certainly buoyed by the Ninth Circuit's similar conclusion. 

The plaintiffs filed a Notice of Appeal  immediately, so the matter is already on its way to the Third Circuit.

[image: Diagram of the Brain circa 1300 via]

November 9, 2013 in Due Process (Substantive), Family, First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Religion, Sexual Orientation, Speech, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, October 31, 2013

Fifth Circuit Stays Injunction Against Texas HB 2 Abortion Restrictions

A few days ago, federal District Judge Lee Yeakel enjoined portions of Texas HB 2 in Planned Parenthood of Greater Texas v. Abbott.

A Fifth Circuit panel has entered its opinion staying the injunction pending a full consideration of the merits, concluding that there is  "a substantial likelihood that the State will prevail in itsargument that Planned Parenthood failed to establish an undue burden on women seeking abortions or that the hospital-admitting-privileges requirement creates a substantial obstacle in the path of a woman seeking an abortion."  The panel also concluded that "the State has made a strong showing of likelihood of success on the merits" on its appeal on the partial injunction pertaining to medication abortions.

As to mandated hospital admitting provisions, the panel observed that the district judge's finding that the requirement failed a rational basis standard "overlooks substantial interests of the State in regulating the medical profession and the State’s interest in “‘protecting the integrity and ethics of the medical profession." Further, the panel held that the district judge's finding of an undue burden did not apply to "a large fraction" of the women seeking abortions in Texas.

Regarding the partial injunction on medical abortions, the Fifth Circuit panel found it is was overbroad, except in a single respect in which the injunction will remain in effect:

the district court’s injunction continues to apply pending appeal with respect to a mother who is 50 to 63 days from her last menstrual period if the physician who is to perform an abortion procedure on the mother has exercised appropriate medical judgment and determined that, due to a physical abnormality or preexisting condition of the mother, a surgical abortion is not a safe and medically sound option for her.

Otherwise, HB 2, the subject of the well-publicized filibuster by state senator Wendy Davis in now in effect.

 

October 31, 2013 in Abortion, Courts and Judging, Due Process (Substantive), Gender, Opinion Analysis, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Monday, October 28, 2013

Texas District Judge Declares Portions of HB 2 Restricting Abortion Unconstitutional

WDTexas banner
In his opinion in Planned Parenthood of Greater Texas v. Abbott, Judge Lee Yeakel has enjoined portions of Texas HB 2, passed in July (despite a well-publicized filibuster by state senator Wendy Davis) and slated to become effective October 29, 2013.

 The judge found unconstitutional the "admitting privileges provision" that provided:

A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services

He concluded that the provision placed a substantial obstacle in the path of a woman seeking an abortion and failed the rational basis test.  As to the substantial obstacle, the judge noted that hospital admitting privileges for physicians performing abortions can be difficult to obtain; for example a physician performing low-risk abortions may simply not have sufficient surgeries to qualify.  Moreover, many physicians are not within the 30 mile limit.  Regarding a rational relationship, the judge found that hospital emergency rooms admitting a patient and hospitals subsequently treating her do not disfavor a patient whose physician does not have admitting privileges.

Judge Yeakel did not declare unconstitutional HB 2's revision of physician prescription of abortion-inducing medications such as RU-486.  HB 2 essentially mandates following the FDA protocol, a protocol that is not usually followed and about which there is substantial disagreement.  Judge Yeakel, however, found that HB 2 did not impose an undue burden because the physician could perform a surgical abortion.  An exception, however, must be added if the physician determines that the health or life of the woman is at stake.

Texas is reportedly already appealing the decision.  It is not the first time that Judge Lee (Earl Leroy) Yeakel has rendered an opinion declaring portions of a Texas statute restricting abortion unconstitutional and been appealed.  Last year in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, a panel of the Fifth Circuit reversed Judge Yeakel's preliminary injunction involving a Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.

 UPDATE: FIFTH CIRCUIT STAY

October 28, 2013 in Abortion, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Medical Decisions, Opinion Analysis, Reproductive Rights, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 22, 2013

Georgia Supreme Court Upholds Constitutionality of Solicitation for Sodomy Statute - As "Narrowly Construed"

The Supreme Court of Georgia has upheld the constitutionality of the state statute criminalizing the solicitation of sodomy, even as it narrowly construed it, and even as it reversed the conviction based upon insufficiency of the evidence.

HunsteinIn its 12 page opinion in Watson v. State, Justice Carol Hunstein (pictured right) writing for a unanimous court, reaffirmed two of the court's previous decisions:

  • Powell v. State (1998), limiting the construction of the sodomy statute pursuant to the "fundamental privacy rights under the Georgia Constitution" and
  • Howard v. State (2000), upholding the sodomy solicitation statute against a free speech challenge by  narrowly construing "the solitication of sodomy statute to only punish speech soliciting sodomy that is not protected by the Georgia Constitution's right to privacy."

 Thus, the rule the court articulates is that

an individual violates the solicitation of sodomy statute if he (1) solicits another individual (2) to perform or submit to a sexual act involving the sex organs of one and the mouth or anus of the other and (3) such sexual act is to be performed (a) in public; (b) in exchange for money or anything of commercial value; (c) by force; or (d) by or with an individual who is incapable of giving legal consent to sexual activity.

Under this redefined "scope of the statute," the court then finds that Watson's actions did not satisfy any of the possibilities required by the third element: it was not to take place in public, it was not commercial, was not by force (although Watson was a police officer) and was not to a person incapable of giving consent (although solicited person was 17, the age of consent in the state is 16).  In addition to reversing the conviction for solicitation of sodomy, the court reversed the conviction for violation of oath of office (of a police officer) that rested on the solicitation conviction.

While the Georgia Supreme Court's opinion is correct, redrafting a statute that remains "on the books" for prosecutors, defense counsel, and perhaps even judges who are less than diligent can result in a denial of justice.

The better course would have been to declare the solicitation of sodomy statute unconstitutional, requiring the legislature to do its job and pass a constitutional statute.  This was the option followed by the New York Court of Appeals - - - New York's highest court - - - when presented by a similar issue in 1983.  Having previously declared the state's sodomy statute unconstitutional in People v. Onofre (1980),  when the court was presented with a challenge to a prosecution under the solicitation of sodomy statute, the court in People v. Uplinger stated:

The object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy. Inasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose. This statute, therefore, suffers the same deficiencies as did the consensual sodomy statute.

The United States Supreme Court granted certiorari in Uplinger, and then dismissed certiorari as improvidently granted, in part because of the intertwining of state and federal constitutional issues and in part because there was not a challenge to the underlying decision that held sodomy unconstitutional, six years before Bowers v. Hardwick, the case in which the United States Supreme Court upheld Georgia's sodomy statute.

October 22, 2013 in Criminal Procedure, Due Process (Substantive), Opinion Analysis, Sexual Orientation, Sexuality, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 8, 2013

Ninth Circuit Holds Haboring and Transporting Provision of SB1070 Unconstitutional

800px-Immigration_Reform_Leaders_Arrested_4Passed in 2010, Arizona's SB 1070 has been controversial since the beginning.  Recall that some portions of Arizona's attempt to control immigration and immigrants in SB 1070 reached the United States Supreme Court in Arizona v. United States, with a majority holding major portions of the state law were preempted by the federal statutory immigration law and thus invalid under the Constitution's Supremacy Clause, Article VI.  The Court, however, upheld section 2(B), perhaps the most controversial aspect, often known as the "show me your papers" provision.  

But preemption was not the only constitutional attack on SB1070; and these challenges are slowly but surely making their way to the Ninth Circuit.  In March, a panel of the Ninth Circuit rendered its opinion in Valle Del Sol v. Whiting and upheld District Judge Susan Bolton's preliminary injunction against enforcement of the day labor regulations of SB 1070 as violative of  the First Amendment. 

Today, the Ninth Circuit again rendered an opinion upholding Judge Bolton's preliminary injunction; and although the case is again styled Valle Del Sol v. Whiting, the provisions of SB 1070 at issue, codified as Arizona Revised Statutes §13-2929, are the ones that attempted to "criminalize the harboring and transporting of unauthorized aliens" within Arizona.

Authored for the panel by Judge Richard Paez, and joined by John T. Noonan, with a concurring opinion and minimal dissent by Judge Carlos Bea, the opinion devoted about 10 of its 45 pages to the issue of standing, concluding that there was both individual and organizational standing.

On the merits, the panel found a due process violation:

Section 13-2929 states that “[i]t is unlawful for a person who is in violation of a criminal offense” to knowingly or recklessly transport, conceal, harbor, or shield an unauthorized alien. We conclude that the phrase “in violation of a criminal offense” is unintelligible and therefore the statute is void for vagueness.

Interestingly, the footnote to this passage explains:

The plaintiffs did not originally raise this issue. But in order to address the plaintiffs’ preemption claim, we must first interpret the statute’s provisions. In attempting to do so, we are confronted with this incomprehensible element of § 13-2929. Thus, we resolve the vagueness issue because it is both “antecedent to . . . and ultimately dispositive of” the appeal before us.

The court stated that "Arizona makes no claim that 'in violation of a criminal offense' makes any sense as written." The panel rejected Arizona's arguments to "save" the statute's wording, stating that Arizona would have the court "replace a nonsensical statutory element with a different element" rather than engage in the more permissible approach of adopting a limiting construction.

The court then engaged with the preemption challenge, stating that even if it were to accept Arizona's proposed interpretation of the statute, the statute is also preempted by federal law, under the doctrines of field preemption and conflict preemption.  It was from this analysis that Judge Bea dissented, saying that because the case is "resolved  on other grounds, namely vagueness, I believe the court should not reach the preemption issue."

The mistake - - - carelessness? - - - in the drafting of this provision was a fatal flaw.  While the legislature could redraft legislation, as the court notes, perhaps the political will in Arizona for bills such as SB1070 has diminished.

October 8, 2013 in Due Process (Substantive), Federalism, Fourteenth Amendment, Interpretation, Preemption, Race, Standing | Permalink | Comments (0) | TrackBack (0)

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)