Wednesday, March 27, 2013

Daily Read: Same-Sex Marriage and Supreme Court Analysis

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

Be clear!

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

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

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

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

RR
[image via]

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

Thursday, March 14, 2013

Daily Read: Emily Bazelon on the Soda Ban Opinion

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

Final

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

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

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

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

RR
[image via]

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

Wednesday, March 13, 2013

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

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

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

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

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

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

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

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

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

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

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

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

RR
[image via]

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

Monday, March 11, 2013

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

Arizona's HB 2281, which we noted when it was passed in 2010,  has been primarily upheld by federal district judge Wallace Tashima in his opinion late last Friday in Acosta v. Huppenthal.   Recall that HB 2281, codified as Arizona Revised Statute §15-112 provides:

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

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

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

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

As to the First Amendment, Judge Tashima explained:

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

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

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

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

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

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

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

RR
[image: 1860 map of Tucson area via]

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

Thursday, March 7, 2013

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

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

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

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

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

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

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

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

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

RR
[image via]

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

Monday, February 25, 2013

Daily Read: Dimock on Torture, Music, and Literature

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

9781564788016In a starred review, Publishers Weekly explains,

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

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

RR

 

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

Monday, January 7, 2013

Daily Read: Pam Karlan on the 2011 United States Supreme Court Term

Pamela Karlan's "Democracy and Disdain" is the Forward to Harvard Law Review's annual Supreme Court issue for the 2011 Term and is a compelling - - - indeed, necessary and delightful - - - read.  Karlan's central thesis, as the title aptly communicates, is that the Roberts' Court has little but disdain for the democratic process.  By "Roberts' Court," of course, she means the five Justices who usually form the majority, including Roberts, Scalia, Thomas, Alito, and Kennedy.  

File19105
Professor Karlan (pictured) concludes that this disdain will ultimately bring the Court into disrepute, comparing the present state of affairs unfavorably with the Warren Court:

The Roberts Court’s narrow substantive reading of enumerated powers maps fairly closely onto the contemporary conservative political agenda. To the extent that the conservative agenda gains popular acceptance, the Court may garner acclaim as a guardian of constitutional values. But if the public rejects that agenda, or remains sharply divided, the Court risks being perceived as simply another partisan institution. The Court’s current status rests in substantial measure on its having been on the right side of history in Brown v. Board of Education. Only time will tell whether the Court will retain that status given the choices the Roberts Court is making.

Karlan is adept at comparing the present Court to previous ones, not only including the Warren Court.  Spoiler alert: When she quotes Justice Roberts, she might not be quoting the 2012 John Roberts but the 1936 Owen Roberts, a device she uses to especially good effect.  Also to good effect is her usage of other justices, colloquies in oral argument, the occasional poet, and theorist.  The writing is broad and engaging without being precious.  It makes her analysis of the cases even more trenchant, situated in larger themes and trends.

Of course, not all ConLawProfs will agree with Karlan's views of the Court, including one subsection entitled "Protecting Spenders and Suspecting Voters," and another "Suspecting Congress."    And Karlan's argument is hardly unique, as anyone who recalls Rehnquist Court scholarship, including the excellent 2001 article "Dissing Congress," by Ruth Colker and James J. Brudney can attest.  And it is especially noteworthy that  the Court did uphold the constitutionality of the Affordable Care Act in National Federation of Independent Business v. Sebelius, a case that Karlan extensively discusses and more interestingly, situates within the Term's other less notable decisions. 

But this is a must read article before beginning the new semester. 

And after that, read George Wills' Washington Post op-ed, Karlan's response, and responses in the Harvard Law Review Online Forum by Randy Barnett and Stephen Calabresi.

RR
[image of Pamela Karlan via]

January 7, 2013 in Courts and Judging, Due Process (Substantive), Elections and Voting, Fifteenth Amendment, First Amendment, Fourteenth Amendment, History, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Separation of Powers, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, January 4, 2013

Daily Read: The Story Behind The Ninth Circuit's Self-Abortion Opinion

In September, the Ninth Circuit rendered its opinion in McCormack v. Hiedeman regarding the constitutionality of Idaho's "unlawful abortion" statutes that makes it a felony for any woman to undergo an abortion in a manner not authorized by statute.  McCormack had been charged by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet.  The court held that imposing a criminal sanction on a woman poses an undue burden under Casey, but the decision was restricted to McCormack given the absence of class certification.

But who is Jennie Linn McCormack?  And how common is procuring abortion "medications" via the internet?

Tnr-cover_1231121Journalist Ada Calhoun's cover article in this month's The New Republic, "The Rise of DIY Abortions," paints a vivid portrait of Jennie Linn McCormack, as well as her attorney ("an avid fan of The Girl with the Dragon Tattoo books. He saw the character of dogged reporter Mikael Blomkvist as a good role model for a lawyer. . . ").  

Calhoun also contextualizes McCormack's situation:

Determining how many American women have had home abortions is exceedingly difficult: The Centers for Disease Control and Prevention does not track illegal abortions. There is no blood test for drugs like Cytotec, and so such an abortion is indistinguishable from a natural miscarriage, even to a doctor. However, the proliferation of online dispensers suggests a rising demand. There are thousands of websites selling Cytotec for as little as $45 to $75 (compared with $300 to $800 for a legal medicated abortion in a clinic). Some claim to offer the harder-to-come-by Mifeprex, but may in fact be peddling Cytotec, or aspirin, or nothing at all. (Possible sources for the drugs include Mexico, where Cytotec is available over the counter, or even the United States, since it’s also prescribed here as an ulcer medication.)

The question of how drugs like Mifeprex and Cytotec are sold and administered is emerging as the next major front in the abortion debate.

Calhoun's article is a must-read for anyone teaching, writing, or thinking about abortion and is sure to be discussed at the many conferences devoted to Roe v. Wade's 40th anniversary, such as this one at the NYC Bar.

RR

January 4, 2013 in Abortion, Current Affairs, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Recent Cases, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

NYC Bar Event on 40th Anniversary of Roe v. Wade

NycbarlogoThe Fortieth Anniversary of the United States Supreme Court's Landmark Decision, Roe V. Wade
Monday, January 14, 2013 6:30 pm-8:00 pm

2013 marks the 40th anniversary of Roe v. Wade, establishing the constitutionally-protected right to abortion. This program will discuss the evolution of the right to abortion in the courts, public opinion, and political discourse since then and will address the current status of reproductive rights in the United States, including its role in the 2012 presidential election.

Moderator: PRISCILLA SMITH, Senior Fellow at the Information Society Project at the Yale Law School

Speakers:
LOUISE MELLING
, Director, ACLU Center for Liberty
RUTHANN ROBSON
, Professor of Law & University Distinguished Professor, CUNY School of Law
KATHLEEN MORRELL, MD, Physicians for Reproductive Choice and Health
JESSICA GONZALEZ-ROJAS
, Executive Director, National Latina Institute for Reproductive Health
BEBE ANDERSON, Director, U.S. Legal Program, Center for Reproductive Rights

Sponsors: Sex and Law Committee, Pamela Zimmerman, Chair

More information here.

January 4, 2013 in Abortion, Conferences, Due Process (Substantive), Family, Fundamental Rights, Gender, Medical Decisions, Privacy, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Thursday, December 6, 2012

Daily Read: Bradley Manning's Attorney on C-Span

Some excellent reporting and gathering of materials from C-SPAN on the Bradley Manning case, involving constitutional issues of state secrets, First Amendment, and due process, among others.

Today's daily "read" is the video from an event discussing the Manning case features a very rare appearance by Manning's attorney, David Coombs.   The introduction of Coombs starts at 22:40.  Coombs discusses the "unlawful pretrial punishment motion" regarding Manning's treatment during detention which he describes as "criminal" before the move to Leavenworth, the public attention to the case, whistle-blowing.  He also responds to vetted questions: he lauds the military justice system, including the judges and any possible panel, as educated, open-minded, and fair; discusses his own legal career; generally discusses the relationship between the "press" and an "aiding the enemy" offense; the perils of "trying the case in the press;" and privileged communication between attorney and client.   Interestingly absent is any discussion of Manning's sexuality.

.

 

This is definitey worth a listen!

RR

December 6, 2012 in Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), Foreign Affairs, News, Sexuality, State Secrets | Permalink | Comments (0) | TrackBack (0)

Monday, December 3, 2012

District Court Upholds Federal Ban on Body Armor

Judge Thomas Johnston (WDWV) ruled in U.S. v. Mark that the federal ban on body armor possession by a convicted felon did not violate the Second Amendment or Due Process Clause, and that Congress did not exceed its authority in enacting the ban under the Commerce Clause.

Mark brought his challenge after he was charged and convicted of possession of body armor by a felon under 18 U.S.C. Secs. 931 and 921(a)(35).  Federal marshalls found the body armor, along with a cache of weapons, in a protective sweep of his home after his arrest. 

Judge Johnston ruled that the statutes did not violate the Second Amendment, because there was no indication that the Framers intended to protect body armor in the Second Amendment, and there was no case law on body armor providing any additional guidance.  He wrote that the statutes were not unconstitutionally vague under due process in defining "body armor," because Section 931 gives a definition "that is readily understandable to the ordinary person."  Op. at 19.  And he held that the jurisdictional element in Section 931 was indistinguishable from the jurisdictional element in 18 U.S.C. Sec. 922(g)(1), the statute penalizing possession of firearms by convicted felons and upheld by the Fourth Circuit--on the basis of its jurisdictional element.

Judge Johnston also ruled the marshalls' search, a protective sweep of the home after arrest, didn't violate the Fourth Amendment.

SDS

December 3, 2012 in Cases and Case Materials, Congressional Authority, Criminal Procedure, Due Process (Substantive), Fourth Amendment, News, Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 14, 2012

The Constitutional Status of Adultery in the Military

Adultery has been dominating the news, including questions about whether or not it can "still be a crime."  As a constitutional matter, any answer must invoke the Court's 2003 decision in Lawrence v. Texas.  Recall that Justice Scalia, dissenting, in Lawrence wrote that:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' [v. Hardwick] validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.

As Scalia recognized, Lawrence "calls into question" the criminalization of adultery.  It would be very unlikely a law criminalizing adultery would survive a constitutional challenge after Lawrence.

The_Scarlet_Letter_(1926_film)But is the military different?  Military courts held that consensual adult sodomy - - - the same crime at issue in Lawrence - - - could be criminalized as a military matter, despite Lawrence, although the application of the consensual sodomy provision could be unconstitutional as applied in certain circumstances.  The central inquiry was whether there were "factors unique to the military environment" that allowed the acts to be constitutionally criminalized.

Writing in 2010, law student Katherine Annuschat, in her comment, An Affair to Remember: The State of the Crime of Adultery in the Military, 47 San Diego L. Rev. 1161, demonstrates "the military's willingness to pursue adultery prosecutions for questionable motives," and argues that "the obsolescence of these statutes in the public mind" and their questionable constitutional pedigree support removal of adultery from the enumerated offenses under the general Uniform of Military Justice article 134.   Similarly, writing a year earlier, attorney  Christopher Scott Maravilla, in The Other Don't Ask, Don't Tell: Adultery Under the Uniform Code of Military Justice After Lawrence v. Texas, 37 Capital U. L. Rev. 659 (2009) concluded that the criminal sanctions for adultery, as well as sodomy, should be "constructively" removed from military laws, although sexual acts could be relevant to other violations of the military code of conduct.

It is doubtful that adultery - - - without more - - - can be constitutionally criminalized, even in the military context.  But perhaps there is always "more."

RR
[image: 1926 movie poster via]


November 14, 2012 in Current Affairs, Due Process (Substantive), Family, Fundamental Rights, History, News, Privacy, Scholarship, Sexuality | Permalink | Comments (1) | TrackBack (0)

Constitutionalism and Jobs

In New York City on Friday:

 

Lung aronowitz

RR

November 14, 2012 in Affirmative Action, Conferences, Due Process (Substantive), Federalism, Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 13, 2012

CFP: Civil Gideon

The deadline is imminent - -  November 15 at 11.59 pm - - - to submit proposals and papers for the University of District of Columbia School of Law's March Symposium

373px-Gideon_petition_for_certiorari "Expanding the Civil Right to Counsel: 50 Years After Gideon."

The University of the District of Columbia David A. Clarke School of Law seeks submissions for its 2013 Law Review Symposium on the topic of expanding the civil right to counsel. This symposium seeks to explore the legal and societal implications of creating a civil right to counsel. Submissions may also address the approaches to providing counsel to civil litigants that have been adopted in U.S. and international jurisdictions, and the impact on litigation outcomes in those jurisdictions. 

Symposium submissions may examine the relative merits of creating a right to counsel in civil cases legislatively, through court rules, or pursuant to state constitutions. Participants in the symposium will address the challenges to creation and implementation of a civil right to counsel through these mechanisms, as well as creation of a civil right to counsel through the Fifth and Fourteenth Amendments. The Law Review also seeks articles discussing the history of Lassiter v. Dept. of Social Services and the prospects for a civil right to counsel under the U.S. Constitution. Panels may address discrete issues ranging from creation and implementation challenges to jurisdictional comparisons to constitutional construction of the right to counsel.

More information and submission details here.

Some ideas and resources we previously discussed on ConLawProf Blog are here, here, here, here, here, here, and here.

RR
[image: Gideon's Petition for Certiorari to the United States Supreme Court, via]

November 13, 2012 in Conferences, Due Process (Substantive) | Permalink | Comments (0) | TrackBack (0)

Friday, October 12, 2012

Daily Read: Vikram Amar on Scalia on Originalism

Over at Justia today, ConLawProf Vikram Amar (pictured) responds to Justice Scalia's well-publicized and controversial remarks that originalism makes issues such as "homosexuality" and abortion "easy."

AmarAmar writes:

But to say that originalism is important and helpful does not mean that it is easy. To see this, let us first look at what it would mean to say that all constitutional disputes should be analyzed and resolved by exclusive reference to originalism.  It would mean, among other things, that the Supreme Court’s cases from the 1960s holding that states may not impose poll taxes or property qualifications on the franchise, because under the Equal Protection Clause and other parts of Section One of the Fourteenth Amendment there is an individual right to vote for legislative elections, are flawed.  So too would be the cases holding, again under the Equal Protection Clause, that states cannot draw voter districts of significantly different sizes (thereby discriminating against urban voters); originalism would call into question the idea that the Equal Protection Clause guarantees “one person, one vote” in legislative elections.

 Amar does not add - - - and perhaps he does not need to - - - any discussion of Bush v. Gore

Instead, Amar focuses his argument on cases that Scalia himself implicated.  Amar's ultimate conclusion is probably one that almost every law student, and most ConLawProfs, could credit:

My point here is not to disagree with any particular outcome that Justice Scalia supports in these or other areas—in fact, I sometimes agree with his constitutional bottom line, and at other times do not.  But my goal here has simply been to suggest that all of this stuff is a long way from “easy.”

RR

October 12, 2012 in Due Process (Substantive), Equal Protection, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 2, 2012

Eighth Circuit on Due Process Constraints of Punitive Damages (and First Amendment)

In its opinion in Ondrisek v. Hoffman, a panel of the Eighth Circuit held  "Despite the exceptionally reprehensible nature of Alamo’s conduct, it would be unconstitutional to let the punitive damages – and their 10:1 ratio to compensatory damages – stand."

The Defendant, Bernie Hoffman, a/k/a Tony Alamo (pictured right), was the leader of Tony Alamo Christian Ministries Tony Alamo(TACM).  The Plaintiffs, Spencer Ondrisek and Seth Calagna were raised in TACM, and suffered extreme brutality until they managed to escape at age 18.  As the panel opinion states:

Spencer Ondrisek and Seth Calagna were raised in TACM. They were forced to work without pay starting at the age of 8. Alamo began threatening to beat Ondrisek when he was 11. Alamo told him that if he disobeyed, he would be enlisted in the military and “shot and killed.” When he was 12, Alamo had an “enforcer” severely beat him because he made a small tunnel while hauling dirt for the church. As Ondrisek received discipline of 15 to 20 blows to his face, Alamo made his father watch. Ondrisek then received 20 to 30 strikes from a paddle that was three feet long, an inch-and-a-half thick, and three or four inches wide. He was unable to sit for several days and not allowed to attend services because the swelling on his face was too visible. Two years later Alamo had Ondrisek beaten again for horseplay. He sustained 15 to 20 hits to his mouth, beginning to bleed after the second blow. He also received 30 to 40 paddles (maybe more), causing severe bruising that did not fully heal for several weeks. He has permanent scarring from the beating. At 15, Ondrisek’s schooling stopped, and he began working on the church’s property 70 hours a week. He was forced to attend services and listen to Alamo’s recordings daily. As punishment for falling asleep as a night watchman, Alamo required him to fast two days, giving him only water. At 16 or 17, Ondrisek was beaten for a third time after being falsely accused of bullying. He was slapped 20 or more times in the face, and paddled 40 times. Ondrisek blacked out, but no one took him to a hospital. His hand was severely injured and still causes him pain.

Calagna’s youth at TACM was similar to Ondrisek’s. When he was 14, Calagna’s parents woke him at 4 a.m. to have him beaten. He was hit so hard he vomited. His face was unrecognizable afterwards; his injuries took weeks to heal. Less than a month later, he witnessed his father get beaten, causing him emotional distress. He was beaten again at 17 for talking about “Harry Potter.” He was struck until the paddle broke and then hit again with a larger board. In addition to physical abuse, both boys experienced verbal abuse. They both contemplated suicide, “unable to imagine that death would be worse.” At 18, Ondrisek and Calagna escaped TACM separately. They still have trouble sleeping, experiencing nightmares and flashbacks. Alamo is currently serving a 175-year sentence for 10 counts of transporting minors across state lines for illicit sex.

A jury awarded each plaintiff $3 million in compensatory damages and $30 million in punitive damages.

The Eighth Circuit quickly rejected Alamo's argument that his actions were protected by the First Amendment free exercise clause.  The panel also rejected Alamo's appeal regarding a denied jury instruction on corporal punishment and regarding compensatory damages.  However, the panel found meritorous Alamo's argument that the $30 million punitive damages award violated the Due Process Clause of the Fourteenth Amendment's prohibition of “grossly excessive” civil punishment under BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996).

The panel reduced the punitive damages to $12 million for each plaintiff, at a ratio of 4:1.  The panel opinion provided an instructive chart of Eighth Circuit cases regarding due process punitive damage decisions in support of its decision.

It does seem, however, that the chart elides the gravity of the case against Alamo.  As the panel admits, the compensatory damages in the various cases are generally less than a million dollars.  Moreover, it does not seem as if any of the charted cases involve such prolonged acts.

Perhaps Tony Alamo's prolonged intentional torts should be considered "off the charts," at least for the "grossly excessive" analysis of punitive damages in a due process analysis.

RR

October 2, 2012 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Fourteenth Amendment, Fundamental Rights, Opinion Analysis | Permalink | Comments (1) | TrackBack (0)

Thursday, September 20, 2012

Daily Read: Supreme Court Opinions Lack Rigor?

From the SCOTUSBlog same-sex marriage symposium, discussing how the Supreme Court should rule if the Court accepts Perry (the Proposition 8 case) or any of the DOMA cases, including Massachusetts v. United States Department of HHS and Gill v. Office of Personnel Management:

 

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

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

 

The full post is here.

RR
[image via]

September 20, 2012 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Gender, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 11, 2012

Ninth Circuit on the Unconstitutionality of Criminalizing Women's Self-Abortion

449px-The_PrisonerIn its opinion in McCormack v. Hiedeman today, a panel of the Ninth Circuit considered the constitutionality of Idaho's "unlawful abortion" statutes, making it a felony for any woman to undergo an abortion in a manner not authorized by statute.  McCormack had been charged with a felony by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet.  While a state magistrate had dismissed the charge without prejudice, the prosecutor had not determined whether or not to re-file a criminal complaint. McCormack brought an action in the federal district court challenging the constitutionality of the Idaho statutes.  The district judge granted a preliminary injunction against the statutes' enforcement.

At the heart of the constitutional inquiry was whether or not a pregnant woman could be constitutionally held criminally liable under an abortion statute.  The prosecutor essentially argued that criminalizing nonphysicians performing abortions is consistent with Roe v. Wade and Planned Parenthood v. Casey.   

The Ninth Circuit, however, agreed with the district judge that imposing criminal sanctions on a pregnant woman imposes an "undue burden" under Casey.  The "undue burden" resulted because the statute required the woman to police the abortion providers' actions or risk criminal sanctions herself:

If a woman terminates her pregnancy during the first trimester but fails to ask the physician whether the office has made “satisfactory arrangements with one or more acute care hospitals within reasonable proximity thereof providing for the prompt availability of hospital care as may be required due to complications or emergencies that might arise,” she would be subject to a felony charge if the physician has not made such arrangements. Idaho Code § 18-608(1). If a woman finds a doctor who provides abor- tions during the second trimester of a woman’s pregnancy, but the doctor fails to tell the pregnant woman that the abortion will be performed in a clinic as opposed to a hospital, the pregnant woman would be subject to felony charges. Idaho Code § 18-608(2). Or, as is the case here, if a woman elects to take physician prescribed pills obtained over the internet to end her pregnancy, which is not authorized by statute, she is subject to felony charges. Idaho Code §§18-608(1)-18- 608(3).

The court also found McCormack's economic situation and the lack of abortion providers in her area to contribute to the "undue burden."

The Ninth Circuit panel found McCormack had standing, but narrowed the district court's injunctive relief to apply only to McCormack since there had been no class certification.

For pregnant women facing prosecutions under abortion statutes, the Ninth Circuit's opinion is an important and persuasive statement on the unconstitutionality of criminal sanctions.

RR
[image: The Prisoner, artist unknown, circa 1907, via]

September 11, 2012 in Abortion, Due Process (Substantive), Gender, Medical Decisions, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Friday, August 31, 2012

Fordham Discussion of the Constitutionality of "Targeted Killings"

Wednesday, August 29, 2012

Ninth Circuit Grants Petition for Writ of Habeas Corpus of Death Row Inmate on Equal Protection and Due Process Grounds

In a divided opinion in Ayala v. Wong, the Ninth Circuit today granted a petition for a writ of habeas corpus based on equal protection and due process grounds.  

As the opinion describes, during the

selection of the jury that convicted Ayala and sentenced him to death, the prosecution used its peremptory challenges to strike all of the black and Hispanic jurors available for challenge. The trial judge concluded that Ayala had established a prima facie case of racial discrimination under Batson v. Kentucky, 476 U.S. 79 (1986), but permitted the prosecution to give its justifications for the challenges of these jurors in an in camera hearing from which Ayala and his counsel were excluded. The trial judge then accepted the prosecution’s justifications for its strikes without disclosing them to the defense or permitting it to respond.

The failure to disclose the prosecution's rationales and allow defense counsel to demonstrate they were pretextual violates the process the Court mandated in Batson.  In Alaya's case, this was compounded by what the opinion labels  "the state’s later loss of a large portion of the record."  This portion included juror information and the court concluded that because "the state’s loss of the questionnaires deprived Ayala of the ability to meaningfully appeal the denial of his Batson claim, he was deprived of due process."

The_Jury_by_John_Morgan
In a dissenting opinion as lengthy as the majority, Judge Consuelo M. Callahan accuses the majority of not honoring the procedural obstacles to Alaya's claim, of making unwarranted suppositions, and of opening the floodgates.  She writes:

In essence, the majority holds that because the record does not affirmatively negate the existence of a possible racial bias, the existence of such a bias may be assumed. Under this approach all Batson challenges in federal habeas petitions must be granted because no one can disprove a negative.

Yet the converse would also be true, of course.  If Alaya's petition were not granted, it would allow judges to deny all litigants, including criminal defendants, the ability to refute the proffered race-neutral explanation, and to absolutely insulate a Batson claim from appellate review.

RR
[image: The Jury by John Morgan, 1861, via]

August 29, 2012 in Criminal Procedure, Due Process (Substantive), Equal Protection, Opinion Analysis, Race | Permalink | Comments (0) | TrackBack (0)