Constitutional Law Prof Blog

Divided Sixth Circuit Panel Upholds Michigan's Public Act 53 Regulating Public School Union Dues Collection

A Sixth Circuit panel today upheld the constitutionality of Michigan's Public Act 53 in its opinion in Bailey v. Callaghan. 

Michigan’s Public Act 53, enacted in 2012, governs public school employee union dues.  It provides:

A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of a labor organization.

As the panel explained, "Thus, under the Act, unions must collect their own membership dues from public-school employees, rather than have the schools collect those dues for them via payroll deductions." 

The panel reversed the district court's grant of a preliminary injunction, holding that the challengers' First Amendment and Equal Protection claims were "without merit."

On the First Amendment claim, the panel held that the case was squarely controlled by the Supreme Court's 2009 decision in Ysursa v. Pocatello Educational Ass'n, and the distinctions urged by the challengers were inapposite.  Its summary exiled the dispute from First Amendment terrain:

So Public Act 53 does not restrict speech; it does not discriminate against or even mention viewpoint; and it has nothing to do with a forum of any kind. Instead, the Act merely directs one kind of public employer to use its resources for its core mission rather than for the collection of union dues. That is not a First Amendment concern.

The Equal Protection argument was dispatched with even less fanfare:

The question here is whether there is any conceivable legitimate interest in support of this classification. We hold that there is: the Legislature could have concluded that it is more important for the public schools to conserve their limited resources for their core mission than it is for other state and local employers. The plaintiffs’ equal-protection claim therefore fails.

Dissenting, Judge Jane Branstetter Stranch begins by noting that the "majority spills little ink" - - - the opinion is 5 pages - - - and then proceeds with a more robust analysis of the First Amendment challenge.  She takes seriously the viewpoint discrimination argument given the Michigan legislature's specific statement that the purpose of Act 53 was to put a "check on union power."  This type of viewpoint discrimination means that Ysursa does not control, and in fact "Ysursa expressly acknowledges the long-standing prohibition on viewpoint discrimination in the provision of government subsidies," although the Court held that because that law applied to all employers, there was no viewpoint discrimination. Instead, she relies on Citizens United to contend:

To the extent Act 53’s purpose is to cripple the school unions’ ability to raise funds for political speech because Michigan’s legislature finds that speech undesirable, it is plainly impermissible. Political speech, of course, is a core First Amendment activity that “must prevail against laws that would suppress it, whether by design or inadvertence.” Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 898 (2010). And “restrictions distinguishing among different speakers, allowing speech by some but not others,” run afoul of the First Amendment precisely because they are “all too often simply a means to control content.” Id. at 898–99.

This doctrinal prohibition applies not only to laws that directly burden speech, but also to those that diminish the amount of speech by making it more difficult or expensive to speak. See, e.g., Citizens United, 130 S. Ct. at 897.

It does seem that Judge Stranch's dissent has the better argument, and definitely the more developed one. 

RR
[image: Central School Iron River Michigan, circa 1909, via]

Campaign Finance and DOMA

In an interesting advisory opinion from the Federal Election Commission (FEC), the ability of same-sex couples married under state law to make political contributions similar to opposite-sex married couples is thwarted by the Defense of Marriage Act (DOMA).  Recall that the United States Supreme Court is currently considering the constitutionality of DOMA in United States v. Windsor, argued last month.

The advisory opinion explained the underlying regulatory scheme:

Notwithstanding the prohibition on contributions in the name of another, a Commission regulation governing “[c]ontributions by spouses” provides that “limitations on contributions . . . shall apply separately to contributions made by each spouse even if only one spouse has income.” 11 C.F.R. 110.1(i). Thus, under Section 110.1(i), a spouse with no separate income may make a contribution in his or her own name “through the checking account of the other spouse.”

It concluded that "so long as the relevant provisions of DOMA remain in effect, the Committee may not apply 11 C.F.R. 110.1(i) to contributions from same-sex couples married under state law," although the Commission recognized that DOMA was currently under review.

In a separately issued concurring statement, FEC Chair Ellen Weintraub (pictured) emphasized that her "vote today was in no way intended to endorse the discriminatory, irrational burden that DOMA places on political participation by individuals in same sex." 

If DOMA is not declared unconstitutional by the United States Supreme Court on the basis of equal protection, the FEC's opinion might be fertile ground on which to grow a First Amendment challenge.

RR
[image of Ellen Weintraub via]

Daily Read: Spindelman on Carpenter on Lawrence

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

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

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

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

RR

Daily Read: Resnik on Equality's Frontiers

What do our visual images of justice tell us?  Judith Resnik with her co-author Dennis E. Curtis, provide ample, exciting and complex answers to that question in their marvelous book, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms, published in 2011.

Resnik's 2013 essay, Equality’s Frontiers: Courts Opening and Closing, adapted from remarks at an event celebrating Justice Ginsburg’s gender-equality jurisprudence and drawing on the book, is a brief but evocative look at how justice and equality are - - - and were - - - portrayed.  Two images Resnik includes and analyzes from WPA murals in courthouses are particularly salient.

First, there is an image of Justice as Protector and Avenger in a South Carolina courtroom.

Not particularly remarkable, one might think, until one reads about the objections to "justice" looking like a “barefooted mulatto woman wearing bright-hued clothing.”

Second, there is an image in a Idaho courthouse:

Should this be removed as offensive?  Or displayed as an accurate part of the history of justice and equality?  Resnik shares the decisions of state officials, ultimately made in consultation with Native tribes.

Resnik contends that such images, including these from courthouses in South Carolina and Idaho,

make a first point—that courts were one of equality’s frontiers. The conflicts about what could or could not be shown on courthouse walls mirrored conflicts about what rights people had in court.

A terrific read - - - and look - - - as well as a reminder of the richness of the Representing Justice book.

RR
[images via]

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

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

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

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

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

RR
[image circa 1890 via]

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

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

Greenhouse has this reminder about federalism and family law:

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

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

Moreover, she extends the argument outside marriage and family law:

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

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

RR
[image via]

Federal Judge Rejects Challenge to WTC Cross in September 11 Memorial and Museum

In her opinion in American Atheists v. Port of Authority of NY and NJ Judge Deborah Batts of the Southern District of New York rejected a challenge to the plan to include a seventeen foot cross (pictured) in the National September 11 Memorial and Museum.

Judge Batts, however, did hold that the actions of the Memorial and Museum were subject to constitutional constraints.  The defendants had argued that the "National September 11 Memorial and Museum at the World Trade Center Memorial Foundation" was not a state actor and thus the complaint against it, and the Port Authority, should be dismissed.  Batts dispatched this argument with a rehearsal of the causal connections:

But for the Port Authority’s donation of the cross, but for the Port Authority granting the Foundation a property interest at the WTC Site, but for the Port Authority’s aid in constructing the Museum, and but for their continuing financial and operating relationship, the Foundation would not be able to include the artifact in the Museum.

She also found that the Foundation could be deemed a state actor because of its "pervasive entwinement" with the government.

The American Atheists were far less successful on their federal and state constitutionallaw arguments based on the Establishment Clause and Equal Protection.

In the more serious Establishment Clause challenge, Judge Batts concluded that the planned use of the cross passed the test of Lemon v. Kurtzman (1971).  The placement of the cross in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” part of the September 11 historical narrative, was not an endorsement of religion.  Judge Batts found it important that

there will be numerous secular artifacts around the cross, as well symbol steel with depictions of a Star of David, a Maltese cross, the Twin Towers, and the Manhattan skyline, which will reinforce to the reasonable observer that they are perceiving a historical depiction of some people’s reaction to finding the cross at Ground Zero.

She disagreed that the size of the cross was determinative.  First, the plaintiffs were mistaken that it was the largest object in the museum at seventeen feet; the "Last Column," also to be included, is thirty-seven feet tall.  Second, she observed that the artifact’s size was a function of its size when it was found; "Defendants did not create the cross to be such an imposing figure."

As for the Equal Protection challenge, Judge Batts found that there was not even an allegation of intentional discrimination or animus, and that the Foundation's act would easily survive rational basis review.  The Museum is merely telling the history surrounding September 11 and the cross, and its meaning for some, is part of that history.  The museum has the choice whether or not to include atheistic symbols.

Because the cross is situated among other artifacts and it is in a museum, any appeal from Judge Batts' grant of summary judgment for the defendants would most likely be unsuccessful.   It looks as if the September 11 Museum will include the seventeen foot cross.

RR
[image via]

Daily Read: Hutchinson on Political Power and Same-Sex Marriage

In the oral argument for United States v. Windsor challenging the constitutionality of the Defense of Marriage Act, DOMA, Chief Justice Roberts expressed skepticism that gays and lesbians were politically powerless, announcing to Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."

ConLawProf Darren Hutchinson (pictured) provides an indepth examination, context, and prescient critique of Roberts' remark in his new article, Not Without Political Power': Gays and Lesbians, Equal Protection, and the Suspect Class Doctrine, available in draft on ssrn.  Hutchinson argues that the political powerlessness factor used to evaluate claims for heightened scrutiny under equal protection doctrine is "especially undertheorized and contradictory." 

Hutchinson's article is a tour de force of precedent deploying rhetoric of political powerlessness.  Of course, Hutchinson highlights Justice Scalia's well-known dissent in Romer v. Evans, the Colorado Amendment 2 case, noting that not only is it based on stereotypes but it "sounds exactly like a political document against gay and lesbian rights."  But Hutchinson does suggest that there is indeed a role for politics, however at a much more sophisticated level.  Rather than jettison any inquiry into political powerlessness as some scholars have argued, Hutchinson contends that a much more robust understanding of politics is necessary.

Ultimately, Hutchinson concludes that the present scholarly and judicial discourse

fails adequately to discuss the multiple factors that cause political vulnerability among gays and lesbians. While some gays and lesbians possess power, most of them do not. Poverty, gender, race, geography, and disability influence the ability of gays and lesbians to exercise political power.

Instead, he suggests that political science scholarship inform legal scholarship and judicial opinions, and that antisubordination legal scholarship inform wider discussions of equal protection.  Certainly, Hutchinson's article should inform anyone considering political powerlessness in the context of same-sex marriage and equal protection.

RR

United States v. Windsor, DOMA Challenge Argued in United States Supreme Court

In the second of the same-sex marriage cases, after yesterday's Proposition 8 argument, the Court heard oral argument today in  United States v. Windsor, a grant of certiorari to the Second Circuit opinion holding DOMA unconstitutional and applying intermediate scrutiny to sexual orientation classifications.

The audio is here:

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Edith Windsor (pictured) argues that DOMA - - - the Defense of Marriage Act - - -violates the equal protection component of the Fifth Amendment.  Recall DOMA is not being defended by the Obama Administration, but by BLAG - the Bipartisan Legal Advisory Group - - - at taxpayer expense which reportedly topped $3 million even before today's arguments. 

The extended two hour session had several attorneys arguing: LawProf Vicki Jackson, Court-appointed as amicus on the standing issue; Sri Srinivasan, Deputy Solictor General (supporting Windsor on the standing issue); Paul D. Clement on behalf of BLAG; Solicitor General Donald B. Verrilli (supporting Windsor); and Roberta A. Kaplan on Behalf of Windsor.

On the standing issue:

Similar to the Proposition 8 case argued yesterday, the fact that the government is not defending the constitutionality of the law raises a quetions about the Court's power under Article III to decide the issues.

Justice Kagan asked one of the most trenchant questions regarding standing and injury, especially given the Obama Administration's stated belief that DOMA is unconstitutional:

The Government is willing to pay that $300,000, would be happy to pay that $300,000, but whether the Government is happy or sad to pay that $300,000, the Government is still paying the $300,000, which in the usual set of circumstances is the classic Article III injury. Why isn't it here?

But Jackson answered that the federal government had not asked the Court to remedy that injury and that the Article III "case or controversy" requirement is "nested in an adversarial system." 

Throughout the arguments on standing there was a search for the most controlling precedent - - - with Justice Roberts' asking "is there any case where all the parties agreed with the decision below and we upheld appellate jurisdiction?
 Any case?"  The general consensus seemed to be that Windsor was distinct from the most similar case, INS v.Chadha decided in 1983. (Chadha involved the legislative veto and produced a very fractured set of opinions on the merits).  Justice Scalia had some barbs to throw at the present administration, contrasting it to when he was at the Office of Legal Counsel. 

 On the merits:

The challenge to DOMA is under the equal protection component of the Fifth Amendment, with the Solicitor General  arguing that the standard to be applied is intermediate scrutiny and Kaplan arguing that DOMA failed even rational basis scrutiny.  Yet the equal protection arguments were embroiled with the federalism and Congressional power to pass DOMA; Justice Kennedy stated that the federalism and equal protection issues were "intertwined."  [A good example this intertwinement occurred in the First Circuit opinion that held DOMA unconstitutional.]

For Solicitor General Verrilli, the intertwinement aspect was a cause of consternation and undercut his argument yesterday in the Proposition 8 case that even a state law denying same-sex marriage violated equal protection and that the correct standard was intermediate scrutiny as the Second Circuit held. 

The consistency principle of equal protection doctrine - - - that the same standard should apply no matter what classification was benefitted or burdened - - - was also a focus, with hypotheticals about the standard should Congress decide that it would provide federal benefits to same-sex couples even if the state did not recognize their marriages. [The question of who would have standing to challenge such a law did not arise]. 

Justice Roberts repeatedly brought up the question of animus as part of a rationality with bite inquiry, asking at least twice whether the 84 Senators who voted for DOMA and the President [Clinton] were motivated by animus.  Justice Roberts also raised the question of political powerlessness, often an inquiry in determining the level of equal protection scrutiny. Roberts echoed an opinion expressed by Justice Scalia in earlier cases that sexual minorities were anything but politically powerless when he told Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."

Justice Ginsburg probably uttered the most memorable quote of the day's arguments.  In her questioning of Paul Clement, who represented BLAG, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage."   Her remark would be even more noteworthy for people who recall that the scrutiny standard is often traced to the famous footnote 4 in Carolene Products, a case about - - - milk.

RR
[image via]

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!

This 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
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Hollingsworth v. Perry, California's Prop 8 Case Oral Arguments in the United States Supreme Court

The first of the two closely-watched same sex marriage cases to be argued before the United States this morning prompted much tweeting and predictions, as well as the promised early release of the audio by the Supreme Court itself.

Audio here:

 

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As the oral arguments today made clear, at issue before the Court today in Hollingsworth v. Perry is the constitutionality of California's Proposition 8, held unconstitutional by a divided panel of the Ninth Circuit in Perry v. Brown.

 

 The Standing Issue:

The first question during oral argument was from Chief Justice Roberts and directed the attention of Hollingsworth's counsel, Charles Cooper, to the "jurisdictional" issue - - - the question of whether Hollingsworth has standing.  Recall that the original challenge to Proposition 8 named Governor Schwarzenegger, and later substituted Governor Brown, as defendants, but both governors and the State of California refused to defend the constitutionality of the voter initiative.  Recall also that the California Supreme Court had answered a certified query about the interests of proponents of a Proposition under California law, but today's the questions from the bench stressed Article III of the United States Constitution.

Roberts' query was repeated to Theodore Olsen, arguing for the challengers to Proposition 8, and to Solicitor General Verrilli, who noted that the United States, as amicus, did not have a "formal position" on standing, but essentially echoed Justice Ginsburg's first question to Cooper, regarding whether the proponents of Proposition 8 had any "propriety interest" in the law distinct from other California citizens once the law had been passed.

On the Merits:

A central query on the merits is the level of scrutiny under equal protection doctrine that should be applied.  Justice Kennedy asked Cooper whether it could be treated as a gender classification and stated "It's a difficult question that I've been trying to wrestle with it."  Yet Cooper's argument in many ways deflects the level of scrutiny inquiry and Justice Kagan expressed it thusly:

Mr. Cooper, could I just understand your argument. In reading the briefs, it seems as though your principal argument is that same-sex and opposite -- opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State's principal interest in marriage is in regulating procreation. Is that basically correct?

Mr. Cooper agreed, and continued his argument, although Justice Scalia later tried to assist him:

JUSTICE SCALIA: Mr. Cooper, let me -- let  me give you one -- one concrete thing. I don't know why  you don't mention some concrete things. If you redefine  marriage to include same-sex couples, you must -- you  must permit adoption by same-sex couples, and there's -­  there's considerable disagreement among -- among  sociologists as to what the consequences of raising a  child in a -- in a single-sex family, whether that is  harmful to the child or not. Some States do not -- do  not permit adoption by same-sex couples for that reason.  

JUSTICE GINSBURG: California -- no,  California does.  

JUSTICE SCALIA: I don't think we know the  answer to that. Do you know the answer to that, whether  it -- whether it harms or helps the child?

But given that Justice Kennedy is widely viewed as the "swing vote," his comments deserve special attention.  During Cooper's argument, Kennedy focused on the children of same-sex couples in California:

JUSTICE KENNEDY: I -- I think there's -­ there's substantial -- that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think? 

But at other times, Kennedy expressed other concerns.  During Theordore Olsen's argument, Kennedy stated

JUSTICE KENNEDY: The problem -- the problem  with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that  metaphor, there's a wonderful destination, it is a cliff. Whatever that was.

And soon thereafter, in perhaps what could be a possible avoidance of all the issues,

JUSTICE KENNEDY: But you're -- you're doing  so in a -- in a case where the opinion is very narrow.  Basically that once the State goes halfway, it has to go  all the way or 70 percent of the way, and you're doing  so in a case where there's a substantial question on -­ on standing. I just wonder if -- if the case was  properly granted. 

MR. OLSON: Oh, the case was certainly  properly granted, Your Honor. I mean, there was a full  trial of all of these issues. There was a 12-day trial,  the judge insisted on evidence on all of these  questions. This -- this is a -­ 

JUSTICE KENNEDY: But that's not the issue  the Ninth Circuit decided.   

Could the Supreme Court merely declare that its grant of certiorari was "improvidently granted."  It certainly wouldn't be the first time (or second) in very recent history.  But in such a high profile case, it might further erode respect for the Court.

RR

 

Supreme Court Takes Another Affirmative Action Case: Michigan's Prop 2

Even as we await the United States Supreme Court's opinion on the constitutionality of a university's affirmative action plan in Fisher v. University of Texas argued October 10, it has become clear that Fisher will not be the Court's last affirmative action case.

Today, the Court granted a petition for certiorari in Schuette v. Coalition to Defend Affirmative Action to the Sixth Circuit's en banc decision in Coalition to Defend Affirmative Action v. Regents of the University of Michigan decided last November. Recall that the Sixth Circuit majority held Michigan's anti-affirmative action constitutional amendment, passed in 2006 as a ballot initiative Proposal 2, unconstitutional.

The en banc Sixth Circuit was seriously fractured, but none of the opinions considered the Court's affirmative action cases of Grutter and Gratz (or the pending case of Fisher).  Instead, the relevant doctrine was the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief?  This underlying problem is similar to some of the arguments in the Proposition 8 case - - - Hollingsworth v. Perry - - - to be argued before the Supreme Court tomorrow, March 26, and certainly resonates with the Ninth Circuit's reasoning in Perry finding that Prop 8 was unconstitutional.

In the case of Michigan's Prop 2, the Sixth Circuit majority found it troublesome that only as to racial classifications in university admissions would a person seeking to change policy have to amend the state constitution, as contrasted to other classifications that could be changed by various other means, including simply persuading an admissions committee. 

As to what the Court's grant of certiorari in Coalition to Save Affirmative Action might mean for Fisher, reading the "tea leaves" is difficult.  As we observed when the Sixth Circuit decided Coalition to Save Affirmative Action, a very broad approach in Fisher - - - such as a declaration that all racial affirmative action policies in education were per se unconstitutional - - - would seriously undermine the rationale of the Sixth Circuit opinion.  However, a grant of certiorari in Coalition to Save Affirmative Action does not mean that Fisher will be narrow or that it will uphold the University of Texas' affirmative action plan.

And one additional "wrinkle": Justice Kagan is recused in Coalition to Save Affirmative Action.

RR
[image Affirmative Action demonstration in 2003, via]

Daily Read: US v. Windsor, the DOMA Case, Amicus Brief Cato Institute and Constitutional Accountability Center

Fourth in a Series: Guest Post by Allison Reddy, City University of New York (CUNY) School of Law, class of 2014

The brief of amici curiae of Cato Institute and Constitutional Accountability Center supports the position of Edith Windsor and argues for affirming the Second Circuit opinion. The Cato Institute is a think tank dedicated to public policy research furthering “the principles of individual liberty, limited government, free markets and peace.”  The challenge to DOMA is consistent with CATO's philosophy of limited governmental interference in issues of personal freedom, especially on the part of the federal government.  The Constitutional Accountability Center, also a think tank, is dedicated to "fulfilling the progressive promise of our Constitution’s text and history."  While the two organizations might differ on controversial cases such as Citizens United, here the organizations agree that DOMA should be held unconstitutional.

Interestingly, the brief does not use the umbrella argument technique and instead jumps right into  the arguments, first discussing the equal protection guarantee embodied in the Fifth Amendment. According to their argument, the Constitution protects individuals, not groups, from “lawless action by the government.” The amicus continues to quote Justice Kennedy’s concurring opinion in JEB v. Alabama, which focused on the fact that individuality rises above association with a particular class. Therefore, any law designed to make individuals inferior under the law because of membership in a class is inherently odious. The argument progresses to discuss the plain meaning of the equal protection clause, which requires “equality under the law and equality of rights for all persons.” Citing the Civil Rights Cases, Yick Wo, and Justice Harlan’s dissent in Plessy v. Ferguson, the brief makes a forceful case for the prohibition of class legislation. Framing DOMA as discrimination against gays and lesbians and denial of their right to “ordinary civic life in a free society” (Romer), the principles and case law undergirding equal protection require that DOMA be overturned.

The brief discusses the history of heightened scrutiny, both strict and intermediate. It supports the Second Circuit’s conclusion that intermediate scrutiny is appropriate. It argues, however, that the Court need not even reach a heightened scrutiny analysis, because DOMA fails even the most deferential rational basis review. However, without acknowledging the perhaps more “searching” scrutiny these cases apply, the brief uses Romer, Moreno, and Cleburne to support its conclusion. It does note that rational basis review, although deferential, “has never entailed judicial abdication in the face of arbitrary, invidious discrimination inconsistent with the equal protection guarantee,” citing Nat’l Fed’n of Independent Business v. Sebelius in support of this proposition. Accordingly, the Court should not abdicate its responsibility to protect gays and lesbians from DOMA’s discriminatory effects.

The brief further argues that because DOMA discriminates against gays in lesbians in almost every aspect of their lives, it violates the basic guarantee of equal protection under the law. DOMA was not a rational solution to a legitimate federal problem because it was obviously enacted in the spirit of animosity towards gays and lesbians, aiming to make them unequal to everyone else. Quoting the legislative history, the brief points out that “federal legislators sought to ‘express their disapprobation through the law,’ 142 Cong. Rec. 17,089 (1996), asserting that same-sex couples were ‘immoral, depraved,’ ‘unnatural,’ ‘based on perversion,’ and ‘an attack on God’s principles.’ Id. at 16,972, 17,074, 17, 082.” The brief goes on to eviscerate the rational bases proffered by BLAG in much the same manner as the Southern District, First Circuit, and Second Circuit.

This amicus brief reads much more forcefully than the Government’s brief. The way that this amicus brief essentially frames Romer, Cleburne, and Moreno as ordinary rational basis cases mirrors BLAG’s framing of those cases—except to support the opposite argument. At first blush, not acknowledging the more “searching” standard in these cases seemed glaring; however, this was obviously an intentional choice to construe these cases as minimally scrutinizing to support a finding that DOMA would fail even the most permissive review.

Moreover, by invoking the plain meaning of equal protection, this brief dispensed with the legal formalism. It argued that couching the arguments over DOMA in the language of federalism is a disingenuous approach to the issue and urges the Court reject BLAG's construction and confront DOMA in a forthright manner.

[posted and edited by RR]

Daily Read: US v. Windsor, the DOMA Case, Amicus Brief of National Association of Evangelicals

Third in a Series: Guest Post by Versely Rosales, City University of New York (CUNY) School of Law, class of 2014

The brief submitted by National Association of Evangelicals; The Ethics  & Religious Liberty Commission of the Southern Baptist Convention; The Church of Jesus Christ of Latter-Day Saints; The Lutheran Church-Missouri Synod; The Romanian-American Evangelical Alliance of North America; and Truth in Action Ministries supports the position of BLAG arguing for the constitutionality of DOMA. 

The brief argues that rational basis review is the proper standard for evaluating legislation, like DOMA, that implicates questions of values, culture, and policy. The brief also argues that “moral and religious views voiced in support of DOMA do not detract from its validity.”

The rational basis argument:

This amicus brief first argues that rational basis governs because what is at issue in DOMA “is not a discrimination against a discrete and insular minority.”  Instead, the issue is a “profound culture debate over the nature and meaning of marriage.”  Further, because “homosexuals” have political power, they do not need extraordinary judicial protection from majoritarian interests. Thus, they can rely on the democratic political processes to engage in a debate over values, morals, judgments, and culture. Therefore, rational basis review is the only standard that allows for spirited democratic debate over the different visions of marriage that should prevail in the federal government. By applying anything other than rational basis, the Court would deprive the public of this debate. In particular, it would deny faith communities, who have a “long experience in these matters” and “unique perspectives,” to be heard by democratic decision makers.

Thus, the brief contends that the Second Circuit’s conclusion that Section 3 of DOMA is unconstitutional stands on a “rickety foundation.”  The Second Circuit is faulted for “creat[ing] the first new protected class in 35 years,” and being contrary to every federal court of appeals that has addressed the question.  Further, this amicus brief notes several other reasons why heightened scrutiny is “plainly improper in this case.” First, heightened-scrutiny jurisprudence contains a strong presumption against creating new suspect classes as courts should be very reluctant to closely scrutinize legislative choices. Secondly, the Constitution presumes that unjust discrimination will be remedied through the ordinary democratic process. Thirdly, the Supreme Court’s refusal to recognize any new suspect classes confirms the necessity of a very cautious approach into sensitive areas.  

The amicus brief of these religious organizations criticizes the Second Circuit opinion for failing to recognize that rational basis review is the proper standard of review for preserving the primacy of the democratic process in cases turning on fundamental issues of public policy, culture, and morality. DOMA is argued to be within this category because it has become monumental cultural conflict between two major visions of marriage: traditional marriage which is centered on procreating and raising children; and the more recent, genderless, adult-orientated notion where procreation and childrearing are not central to marriage’s meaning. The traditional marriage concept has deep roots and provides a mechanism for coping with the reality that sex between men and women generally results in pregnancy and childbirth. And, whether proven or not, it is reasonable to accept that children born from opposite-sex married relationships will benefit by being raised by two parents within long-term relationships. In addition, lawmakers cannot and should not rely on social science scholars on the effects of sexual minorities parenting children because, in part, such opinions are inherently tentative and often laden with value-based assumptions.  Thus, lawmakers should be allowed to use their judgments and own experience, which have led them to believe that traditional marriage and family structure deserve distinctive legal protections.

The amicus brief also points out while the Court has never adopted “the genderless, adult-centered definition of marriage,” it has “long endorsed the strong legislative preference for man-woman marriage as the foundation of our society.” Given this historical preference, the Court should construe DOMA as a rational preference for the tried and familiar over the untried and novel.

The moral and religious views argument:

The second main argument of this amicus brief contends “moral and religious views voiced in support of DOMA do not detract from its validity.”  Congress identified “defending traditional notions of morality” as one of the four “governmental interests” for the enactment of DOMA. The brief argues that Congress recognized that the issue of marriage has moral or religious aspects for many Americans and that cannot be divorced from the practicalities. Lawmakers have the right to protect this valued moral norm, and when they do so, it should not be labeled as invalid just because it happens to coincide with the tenets of some - - -or all - - - religions. To declare DOMA void merely because it adheres to traditional moral and religious belief would fly in the face of this Court’s ruling that the Constitution does not allow the government to treat religion and those who practice or teach it as being subversive to American ideals and therefore subject them to unique disabilities. “By scrutinizing a law reflecting, in part, religious values more severely than others, courts would effectively target such beliefs or religious support for unusual burdens or penalties.”

Interestingly, the brief ultimately argues that to subject DOMA to heightened scrutiny simply because of its “affiliation with traditional morality would raise First Amendment concerns.”

Contribution of the Brief:

This amicus brief supports the position of BLAG that DOMA is unconstitutional.  But although BLAG agrees that traditional marriage coincides with religious sections of the citizenry, it does not emphasize the moral aspect of DOMA in its brief.

The Government brief does not agree with the assertion that what is at issue is a cultural debate. The Government clearly argues in its brief that DOMA is based on discrimination and it affects the distribution of benefits to a sub-section of society. The Government also disagrees with the Amicus brief’s most basic contention: Homosexuals are not a discrete and insular minority deserving of heightened scrutiny.

The argument that the First Amendment is relevant is unique; it is not shared by BLAG or the Government.

[posted and edited by RR]
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Daily Read: US v. Windsor, the DOMA Case, Amicus Brief of Scholars of the Constitutional Rights of Children in Support of Windsor

Second in a Series: Guest Post by Anetta Sookhdeo, City University of New York (CUNY) School of Law, class of 2014

The brief of the Scholars of the Constitutional Rights of Children (including Professor Tanya Washington, pictured) in support of Respondent, Edith Windsor, responds to several of BLAG’s assertions that the Defense of Marriage Act (DOMA) advances the welfare of children by (1) providing a stable structure to raise unintended and unplanned offspring; (2) encouraging the rearing of children by their biological parents and (3) promoting childrearing by both a mother and a father.  These goals are discredited by the Amici because they merely reflect a preference for children to be raised by opposite-sex parents. 

The Amici assert that DOMA creates a classification based on children living in households headed by same-sex parents and those living in households headed by opposite-sex parents.  Subsequently, children are harmed by treating these two classes differently, even though they are identically situated.  To bolster this point, the Amici cite an October 2011 study that estimates about two million children make up the class of children being raised by LGBT parents.  Of those, according to the United States Census, between three hundred thousand and one million children are being raised by same-sex couples.  Moreover, these numbers are likely to increase as more states begin to legally recognize same-sex marriages. 

Additionally, DOMA deprives children of important federal resources and protections by making households headed by same-sex parents ineligible to receive them.  The Amici assert that these benefits and resources, which include the Family Medical Leave Act (FMLA), Federal Employees Health Benefits Program, Social Security payments to spouses and filing joint tax returns, are important safety features to protect children within family units.  For example, the goal of the FMLA to promote stability and economic security of families is not extended to households where children are raised by same-sex parents.  Whereas eligible opposite-sex married couples are eligible to take up to twelve weeks of unpaid leave to care for a sick child, spouse or parent, same-sex married couples are ineligible for this benefit.  The Amici argue that children within these families being deprived of federal resources have the same need and interest in family security and stability and suffer an injury that is cumulative over the course of their lifetimes. 

Furthermore, children suffer psychological harm as a result of DOMA symbolically expressing inferiority of families headed by same-sex parents.  According to the Amici, the purpose and effect of DOMA is to stigmatize families with same-sex parents and, by extension, the children of those families.  DOMA accomplishes this result by communicating to those children in households headed by same-sex couples that their family unit is “morally objectionable and functionally deficient.”  The Amici argue that the Court has already spoken through Brown v. Board of Education and Plyler v. Doe those statutes which place a stigma on children and confer adverse psychological effects are unconstitutional. 

The Amici’s second argument is that DOMA should be invalidated because it does not survive any level of scrutiny for punishing children based on moral disapproval for the conduct of their parents.  The Court’s goal and history of protecting the right of children to “self-determination and to flourish fully in a society without being hampered by legal, economic and social barriers” is seen by the decisions in Levy v. Louisiana and Weber v. Atena Casualty & Surety Co.  In these cases, the court decided that invidious classifications based on illegitimacy were impermissible.  The Amici acknowledge that while the state may have a valid interest in promoting marriage and childbirth within marriages, the state is not permitted to exclude a group of children who have identical interests in the benefits at issue, simply because the group of children is disfavored. 

In addition, the Amici argue that the outcome of Plyler indicates the Court’s view that a foundational mission of the Equal Protection Clause is “to work [for] nothing less than the abolition of all caste-based and invidious class-based legislation.”  Plyler indicated that while states could disapprove of the presence of undocumented immigrants in the United States, they could not justify the imposition of disabilities on the minor children of undocumented immigrants.  The Amici argue that, under the mission of the Court and past rulings, laws that discriminately determine legal, economic and social status of children are prohibited. 

Lastly, the Amici argue that states may not enforce moral disapproval against children based on the relationship between their parents.  The decision in Palmore v. Sidoti held that “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”  Palmore v. Sidoti, 466 U.S. 429 (1984).  Nor may the Court rely on such private biases which draw “impermissible, overbroad generalizations about different talents, capacities or preferences of males or females”.  Caban v. Mohammed, 441 U.S. 380 (1979).  The Amici urge the Court to find that DOMA gives effect to private bias against same-sex couples, particularly in regards to private biases about gender-role stereotypes in parenting, and should be found unconstitutional. 

This brief bolsters the Government’s position by highlighting an argument that largely went unnoticed but is also at the heart of the issue being decided.  The brief adds cases that were not before mentioned in the Government’s brief and provides additional avenues to argue that DOMA should be held unconstitutional.  For example, the Government’s brief does not discuss Brown v. Board of Education, but here Brown is used as a primary case to advocate for invalidating a statute that adds a stigma against children of households headed by same-sex couples.  

[posted and edited by RR]

Daily Read: US v. Windsor, the DOMA Case, Amicus Brief of Senators Hatch et. al. in Support of BLAG

First in a Series: Guest Post by Meghan McLoughlin, City University of New York (CUNY) School of Law, class of 2014

Brief on the merits of the Amici Curiae United States Senators Orrin G. Hatch (pictured), Saxby Chambliss, Dan Coats, Thad Cochran, Mike Crapo, Charles Grassley, Lindsey Graham, Mitch McConnell, Richard Shelby, and Roger Wicker in support of respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives.   

The Amici were all sitting United States Senators who served in the 104th Congress House or Senate and voted for passage of the Defense of Marriage Act (“DOMA”). Their interest in writing this brief was to inform the Court of the important interests that DOMA was enacted to serve. Therefore, this brief does not explore the equal protection levels of scrutiny and their applicability to DOMA or discuss every interest in enacting DOMA, as the Bipartisan Legal Advisory Group (“BLAG”) did in their brief. Rather, the The Amici’s argument focuses on and expounds specifically federal interests that were considered and explained throughout DOMA’s legislative history, but which the Amici feel were ignored, misunderstood, or summarily dismissed in the courts below.

First, the Amici contend alongside BLAG that pre-DOMA law did not recognize same-sex marriage, and that DOMA merely reaffirmed the existing federal definition. Like BLAG, the brief cites to other federal statutes and benefits describing spouses as husband and wife, and explains that at the time federal benefit statutes were enacted, no state recognized same-sex marriages. Both briefs state that DOMA was a response to the Hawaii case, Baehr v. Lewin,  but  the Amici go as far to describe Congress’s view that Baehr was “part of an orchestrated legal assault being waged against traditional heterosexual marriage.” [Brief, pg. 2]

Second, the Amici echoed BLAG’s asserted interest of uniformity and certainty in the application of federal law. In addition to BLAG’s claim that a federal definition of marriage is necessary to ensure that couples in different states do not have different eligibility to receive Federal benefits, the Amici also explain that DOMA was enacted to avoid state by state and statute by statute litigation over whether a couple who had married in a state that recognized same-sex marriage would be “married” if they moved to another state. The outcome of this type of litigation would largely depend on whether a state had a strong public policy against same-sex marriage, which would vary state to state. DOMA was enacted to prevent this litigation, which would have varying and inconsistent results. The Amici further contend that there is nothing suspicious or novel about Congress preferring this uniformity over deference to state law – especially when Congress is confronted by an effort to change the definition of marriage contrary to history and tradition.

Third, similarly to BLAG, the Amici reject the argument that DOMA interferes with the autonomy of states to define marriage and claim that Section 3 of DOMA protects the ability of states to preserve traditional marriage. Like BLAG, the Amici reference Section 2 of DOMA as preserving and protecting the autonomy of each individual state. In addition, the Amici claim that Section 3 of DOMA preserves the traditional definition of marriage by removing the incentive that might otherwise encourage efforts to change state law to recognize same-sex marriage. The Amici state that if recognizing same-sex marriage would allow same-sex couples to obtain federal benefits, those seeking recognition by the courts would have a powerful weapon, especially in the cases of sympathetic plaintiffs.

Finally, the Amici devote the last section of their brief to the claim that support for traditional marriage is not unconstitutional animus. Although BLAG also contends that DOMA is not motivated by animus, the Amici specifically claim that the Court’s animus jurisprudence does not support invalidating an otherwise constitutional statute based on the subjective motivations of individual legislators. Thus, where, as here, there is sufficient legislative history to indicate the law is rationally related to some legitimate governmental interest, the law cannot be invalidated by the improper motives of some legislators. Moreover, the Amici argue, there is no basis to equate support for the traditional definition of marriage with unconstitutional animus. They contend it is not irrational or bigoted to oppose the redefinition of marriage that is unknown to history or tradition.

The Amici did not present any entirely new interests or arguments in support of DOMA, but rather further explained and detailed interests that have already been discussed in the BLAG brief and in the court decisions below. It was an opportunity for the Amici to present more rationales connecting the asserted interests to DOMA but did not necessarily help  in understanding BLAG’s arguments. In addition, the Amici characterized the potential for recognition of same-sex marriage as an orchestrated conspiracy to undermine their view of marriage, which may not have been appropriate for a party’s brief given its strong language.

[posted and edited by RR]

Weekly Read: US v. Windsor, the DOMA Case, Amicus Briefs

With the oral argument in United States v. Windsor testing the constitutionality of DOMA set for March 27 (the day after the related Prop 8 case, Hollingsworth v. Perry), the amicus briefs have been piling up (and one more, from General Edwin Meese III and John Ashcroft, will apparently be added). 

Recall that in United States v. Windsor, the constitutionality of DOMA is being argued by BLAG, the Bipartisan Legal Advisory Group of the U.S. House of Representatives, while Windsor (as well as the United States Government) argues that DOMA is unconstitutional.  This unusual configuration raises some standing issues, but the merits briefs focus on the constitutionality of DOMA under the equal protection component of the Fifth Amendment.

In case you haven't had a chance to read each one of the amicus briefs, this week we highlight four briefs, in guest posts authored by CUNY School of Law students in Professor Andrea McArdle's "Judicial Writing Seminar."  The student authors will briefly outline the arguments and then discuss what, if anything, the particular amicus brief adds to the parties' briefs.

Here's the line-up:

Meghan McLoughlin discusses the brief of Senators Orrin G. Hatch et. al in support of respondent BLAG.

Anetta Sookhdeo discusses the brief of the Scholars of the Constitutional Rights of Children in support of Windsor.

Versely Rosales discusses the brief of the National Association of Evangelicals; The Ethics  & Religious Liberty Commission of the Southern Baptist Convention; The Church of Jesus Christ of Latter-Day Saints; The Lutheran Church-Missouri Synod; The Romanian-American Evangelical Alliance of North America; and Truth in Action Ministries in support of BLAG.

Allison Reddy discusses the brief of the CATO Institute and the Constitutional Accountability Center in support of Windsor.

RR
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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.

Savings 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]

"Racial Entitlement": Professor Scalia, then and now

Justice Antonin Scalia's remark during the oral arguments in Shelby County v. Holder last week characterizing the preclearance provision of the Voting Rights Act as a "racial entitlement" has garnered much attention, including "gasps" in the Supreme Court chambers itself.  

Of course, the ability of Scalia's comments to provoke is not new: his statements in last year's oral arguments in Arizona v. United States regarding the constitutionality of SB1070 drew particular attention.

In the Shelby argument, Scalia described the Voting Rights Act provision and its reenactments as

a phenomenon that is called perpetuation of racial entitlement.  It's been written about.  Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

To what writings does Justice Scalia refer?  ConLawProf Chad Flanders, in a news commentary that is itself garnering attention, suggests that Justice Scalia might be referencing Professor Scalia's own writings.  Flanders points to Scalia's article, The Disease as Cure: “In Order to Get Beyond Racism, We Must First Take Account of Race,” 1979 Wash. U. L. Rev. 147, available here. 

Scalia's writing is not an article but rather published as a "Commentary" and obviously taken from his remarks on a panel at a Symposium entitled "The Quest for Equality."  Scalia describes himself as the "anti-hero" of the panel: the other commentator was Herma Hill Kay and the main paper was by Harry T. Edwards. (Ruth Bader Ginsburg delivered the main paper on the next panel.)  His subtitle is derived from Justice Blackmun's dissenting and concurring opinion in Regents of University of California v. Bakke, 438 U.S. 265, 407 (1978).

Scalia indeed does use the term "racial entitlement" in his remarks:

The affirmative action system now in place will produce the latter result because it is based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need; that is to say, because it is racist.

But of course, his rejection of "racial indebtedness" was clear in his 1995 concurring opinion in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, in which the Court held an affirmative action policy unconstitutional.  Scalia wrote then:

under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual.

And of course, Scalia is not alone in his views.  Not only was he concurring in Adarand, but the notion of affirmative action as racist is forcefully articulated by Chief Justice John Roberts in the last (substantive) line in the opinion for the Court in  Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007):

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

Perhaps the issue is not so much the provenance of Scalia's statements during oral arguments, but the surprise they are still capable of provoking.

RR
[image: caricature of Antonin Scalia by DonkeyHotey via]

Fourth Circuit Rejects First Amendment Claims from "Fortune Teller"

In its opinion in Moore-King v. County of Chesterfield, a panel of the Fourth Circuit has upheld the constitutionality of ordinances specifically directed at those defined as "fortune tellers."  The fortune tellers must have a business license, like all other businesses, but must also:

• have a special permit from the Chief of Police, the application for which must include biographical information, fingerprints, criminal history, and an authorization for a background check;
• pay a license tax of $300;
• be located within particular business districts, excluding certain other business districts.

"Justice" Tarot Card circa 15th Century

As to the free speech claim, the Fourth Circuit disagreed with the district judge's finding that the Moore-King's practice was inherently deceptive and thus categorically excluded from First Amendment protection.  In support, the panel interestingly replied upon United States v. Alvarez (the "Stolen Valor case). Yet the panel then struggled with the appropriate First Amendment doctrine that should be applied - - - a not unusual situation in First Amendment litigation - - - rejecting the commercial speech doctrine and time, place or manner analysis and settling upon what it named the "professional speech doctrine." 

As the government complies with the professional speech doctrine by enacting and implementing a generally applicable regulatory regime, the fact that such a scheme may vary from profession to profession recedes in constitutional significance. Just as the internal requirements of a profession may differ, so may the government’s regulatory response based on the nature of the activity and the need to protect the public. [citation omitted] With respect to an occupation such as fortune telling where no accrediting institution like a board of law examiners or medical practitioners exists, a legislature may reasonably determine that additional regulatory requirements are necessary.

The panel then engaged in little analysis, except to say that this did not mean that the government had "carte blanche" but that it held that the government "regulation of Moore-King's activity falls squarely within the scope of that doctrine."

As to Free Exercise, the panel rejected Moore-King's qualifications to assert the claim:

Moore-King’s beliefs more closely resemble personal and philosophical choices consistent with a way of life, not deep religious convictions shared by an organized group deserving of constitutional solicitude.

In addition to the First Amendment claims, Moore-King had also challenged the regulatory scheme on the basis of Equal Protection, although this argument was largely predicated upon her First Amendment interests as the fundamental rights that would trigger strict scrutiny.  Again, the Fourth Circuit affirmed the district judge's grant of summary judgment in favor of the government.

This is a case ripe for critique and would make a terrific subject for student scholarship.

RR
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