Friday, October 17, 2014

Arizona Federal Judge Holds State's Same-Sex Marriage Ban Unconstitutional

Judge John Sedwick's  opinion in Connolly v. Jeanes is a mere four pages, noting that the requirement of  a "lengthy and detailed opinion" is now obviated because as the district court is bound by the Ninth Circuit's opinion in Latta v. Otter.  As to a stay, an "appeal to the Ninth Circuit would be futile" and given the Supreme Court's denial of petitions for writs of certiorari, it is "also clear" that the "High Court will turn a deaf ear on any request for relief from the Ninth Circuit's decision." 

Despite the recent activity by Justice Kennedy including the stay and modified stay and vacated stay of the Ninth Circuit's decision, the Attorney General Tom Horne (pictured) agreed in a statement (video here) and cited his ethical duties under Rule 11 and not to "waste the taxpayers' money."  He issued a  letter to the clerks "effective immediately." 

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October 17, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

Alaska Same-Sex Marriage: Court Declares Same-Sex Marriage Ban Unconstitutional

On Sunday afternoon before a Monday federal holiday, federal district judge Timothy Burgess of the District of Alaska issued an  opinion in Hamby v. Parnell  and immediately enjoined officials of the state of Alaska from enforcing either the statute or state constitutional provision barring same-sex marriages. 

800px-AlaskaMap1895Judge Burgess' 25 page opinion predictably relied upon the Ninth Circuit's decision in Latta v. Otter concluding that the same-sex marriage bans of Idaho and Nevada violated the Equal Protection Clause and using the Circuit's heightened scrutiny standard for sexual orientation.  Judge Burgess also found that the Alaska laws violated the Due Process Clause because they infringe on the "fundamental right to choose whom to marry." 

In the Due Process discussion,  Judge Burgess has an interesting invocation of originalism:

In Lawrence  [v. Texas],  the critical mistake identified by the Supreme Court in its earlier reasoning [in Bowers v. Hardwick]  is the same error made by Defendants in this case: in the desire to narrowly define the rights protected by the Fourteenth Amendment, they “fail[] to appreciate the extent of the liberty at stake.”

Our forefathers wrote the Bill of Rights hundreds of years ago and could not have predicted “the components of liberty in its manifold possibilities” as we see today. As the Supreme Court articulately explained, “those who drew and ratified the Due Process Clause[]...knew times can blind us to certain truths and later generations can see that laws once necessary and proper in fact only serve to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” The Plaintiffs in this case do not ask the Court to recognize an entirely new fundamental right to same-sex marriage; rather, Plaintiffs wish to participate in the existing liberty granted to other couples to make a deeply personal choice about a private family matter.

 Alaska has filed an Emergency Motion for Stay Pending Appeal, arguing in part that there is a "reasonable likelihood the Ninth Circuit will rehear Latta en banc and thus vacate the panel's decision."  This is largely based on the Ninth Circuit's application of heightened scrutiny in the panel opinion. 

But recall that this heightened scrutiny is based on SmithKline Beecham Corp. v. Abbott Labsdecided 10 months ago and which was denied a rehearing en banc. 

And recall also that while Justice Kennedy of the United States Supreme Court granted a stay of Latta, he later clarified that the stay was only as to Idaho and not Nevada (although the Ninth Circuit's heightened scrutiny standard was applied to the laws of both states), and the stay vacated on Friday.

Additionally, Alaska argues that "conditions compelling Supreme Court review of this issue could easily develop very soon."  Recall that the Supreme Court denied certiorari of the decisions from three circuits finding same-sex marriage bans unconstitutional.  As Alaska argues:

The Sixth Circuit heard argument in early August regarding cases14 from four states (Michigan, Kentucky, Tennessee, and Ohio) and could issue a decision at any time, and the Fifth Circuit has expedited argument of Louisiana and Texas cases and could issue a decision by end of this year. Accordingly, circumstances are likely to develop in which the Supreme Court is virtually obligated to review the issue.

Yet given the lack of endurance of previous stays, there is little reason to believe Alaska would be considered a different case.

 

October 14, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 8, 2014

Supreme Court Justice Anthony Kennedy Stays Mandate of Ninth Circuit in Same-Sex Marriage Case

On Monday, the United States Supreme Court denied certiorari to the Fourth, Seventh, and Tenth Circuits that had held that an array of states' same-sex marriage ban statutes were unconstitutional.

On Tuesday, the Ninth Circuit issued its opinion holding that the same-sex marriage bans in Idaho and Nevada were unconstitutional, on substantially similiar reasoning to the cases from the other circuits.

On Wednesday, in a brief Order, Justice Anthony Kennedy, as Circuit Court Justice, entered a stay of the mandate of the Ninth Circuit opinion in Otter v. Lata. Here's the text of Kennedy's Order:

UPON CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the mandate of the United States Court of Appeals for the Ninth Circuit, case Nos. 12-17668, 14-35420 & 14-35421, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Thursday, October 9, 2014, by 5 p.m.

While the Ninth Circuit applies intermediate scrutiny in the equal protection analysis, this does not seem to be sufficient to warrant a stay. 

What does Justice Kennedy have in mind?

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Caricature of Justice Kennedy by Donkey Hotey via

UPDATE: Later on Wednesday, Justice Kennedy issued a second Order clarifying that the stay applies only to Idaho and not to Nevada.

Here's the text of that Order:

UPON FURTHER CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the portion of the order issued on this date entering a stay of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 12-17668 is hereby vacated. The stay entered with respect to the Ninth Circuit’s mandate in case Nos. 14-35420 & 14-35421, shall remain in effect pending further order of the undersigned or of the Court.

 Further updated on October 10 here.

October 8, 2014 in Courts and Judging, Equal Protection, Family, Fourteenth Amendment, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Court Strikes Virginia Congressional District as Racial Gerrymander

A divided three-judge district court in the Eastern District of Virginia ruled that the district lines for Virginia's Third Congressional District violated equal protection. The court left the district in place for the fall elections, but ordered the state legislature to redraw the boundaries in the next legislative session.

The ruling tests whether and when a state's use of race to increase the percentage of racial minority voters in a district above the pre-existing percentage--for the stated reason to avoid retrogression under Section 5 of the Voting Rights Act (pre-Shelby County)--violates equal protection.

In other words: When can a state pack racial minority voters into a district in a way that dillutes their influence elsewhere, in the name of compliance with Section 5 of the VRA?

A similar issue is now before the Supreme Court in the Alabama cases, set for oral argument on November 12. We'll have an argument preview and review.

The legislature drew Virginia's Third in 2012 with an eye toward satisfying the non-retrogression standard in Section 5 of the Voting Rights Act. (At the time, before Shelby County struck the coverage formula for Section 5, Virginia was a covered jurisdiction.) In particular, the legislature used a 55 percent floor for the percentage of persons of voting age who identified as African America (the "BVAP"), so that the district wouldn't fall below a 55 percent BVAP. The legislature then increased the BVAP from 53.1 percent (the BVAP in the old district, the benchmark, under the 2000 census) to 56.3 percent (the BVAP in the redrawn district, based on the 2010 census). DOJ precleared the plan under Section 5 (again, before Shelby County).

Plaintiffs sued, arguing that the plan was a racial gerrymander in violation of the Equal Protection Clause.

The court ruled that legislative history and circumstantial evidence showed that the predominant purpose of the plan was race, and that the plan was subject to strict scrutiny. The court assumed, without deciding, that compliance with Section 5 was a compelling state interest before the Court struck Section 4 in Shelby County, but ruled that the redrawn district wasn't narrowly tailored to meet that interest. In particular, the court, citing Bush, said that the BVAP increase wasn't narrowly tailored "when the district had been a safe majority-minority district for two decades." The court wrote that "[w]hile the BVAP increase here is small than in Bush [where a plurality of the Supreme Court held that a BVAP increase from 35.1 percent to 50.9 percent wasn't narrowly tailored to achieve non-retrogression], the principle is the same." The court also said that the legislature's use of a 55 percent BVAP threshold (as a baseline below which the district could not fall), as opposed to some other analysis of racial voting patterns, wasn't narrowly tailored.

Judge Payne dissented.

Unless and until there's an appeal, Virginia's Third will stay the shape of the 2012 plan for the 2014 elections. But the legislature will have to redraw it next year.

October 8, 2014 in Cases and Case Materials, Elections and Voting, Equal Protection, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 7, 2014

Ninth Circuit Declares Idaho and Nevada Same-Sex Marriage Bans Unconstitutional

The Ninth Circuit has issued its opinion in Latta v. Otter (and Sevick v. Sandoval) holding that the same-sex marriage bans in Idaho and Nevada respectively are unconstitutional.

This is not surprising given yesterday's denial of certiorari by the United States Supreme Court to the petitions in the Fourth, Seventh, and Tenth Circuit cases with similar holdings.

9thCircuitThe unanimous opinion authored by Judge Reinhardt held that the Idaho and Nevada laws regarding same-sex marriage "violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard" of  SmithKline Beecham Corp. v. Abbott Labs.

The court rejected the argument that the same-sex banning marriage laws survive heightened scrutiny because they promote child welfare by encouraging optimal parenting.  In part, the court found that the means chosen to accomplish this goal was underinclusive:

If defendants really wished to ensure that as many children as possible had married parents, they would do well to rescind the right to no-fault divorce, or to divorce altogether. Neither has done so. Such reforms might face constitutional difficulties of their own, but they would at least further the states’ asserted interest in solidifying marriage. Likewise, if Idaho and Nevada want to increase the percentage of children being raised by their two biological parents, they might do better to ban assisted reproduction using donor sperm or eggs, gestational surrogacy, and adoption, by both opposite-sex and same-sex couples, as well as by single people. Neither state does.

 The court found that the other interests were likewise inadequate to support the ban on same-sex marriage.  In approximately 30 pages, the court affirmed the district court in Latta and reversed the district court in Sevcik.

Interestingly, there are two separate concurring opinions.  Judge Reinhardt wrote a separate concurring opinion (to his own opinion), adding a fundamental rights analysis: "laws abridging fundamental rights are subject to strict scrutiny, and are invalid unless there is a “compelling state interest” which they are “narrowly tailored” to serve.  Unsurprisingly, he found the same-sex statutes did not survive under this more rigorous standard. 

Judge Berzon's separate concurring opinion added yet another justification for the ruling:  the same-sex marriage bans are classifications on the basis of gender that do not survive the level of scrutiny applicable to such classifications.

Thus, the Ninth Circuit joins the other three post-Windsor circuits, and essentially reaffirms its pre-Windsor holding in Perry v. Brown that same-sex marriage bans violate equal protection.

October 7, 2014 in Equal Protection, Fourteenth Amendment, Gender, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Monday, October 6, 2014

Supreme Court Denies Certiorari to Same-Sex Marriage Petitions

In its Order today, the Court denied certiorari to a raft of cases, including the cases seeking review of opinions in which appellate courts found bans on same-sex marriage to be unconstitutional.

These cases are from three circuits:

From the Seventh Circuit:  Bogan v. Baskin and  Walker v. Wolf,  decided in September, regarding the same-sex marriage bans in Indiana and Wisconsin;

From the Tenth Circuit,  Herbert v. Kitchen, the opinion issued in June regarding Utah's prohibition and Smith v. Bishop, extending Herbert's reasoning to the ban in Oklahoma; and

From the Fourth Circuit's Bostic v. Rainey, regarding Virginia's prohibition there were three petitions, McQuigg v. Bostic, Schaefer v. Bostic, and Rainey v. Bostic.  The Fourth Circuit has already issued a Mandate, lifting the stay. 

 

 

 

 

 

October 6, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Gender, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, September 29, 2014

Supreme Court Stays Injunction Mandating Ohio Early Voting

In a closely divided vote, the United States Supreme Court has issued a stay of the Sixth Circuit's affirmance of an injunction that would require early voting to begin in Ohio tomorrow, September 30.

Here's the entire Order:

The application for stay presented to Justice Kagan and by her referred to the Court is granted, and the district court’s September 4, 2014 order granting a preliminary injunction is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. 

Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application for stay.

September 29, 2014 in Courts and Judging, Current Affairs, Elections and Voting, Equal Protection | Permalink | Comments (0) | TrackBack (0)

Friday, September 26, 2014

Sixth Circuit Rules Ohio's New Voting Scheme Likely to Violate Equal Protection

With quick dispatch, the Sixth Circuit has issued its unanimous  opinion in Ohio State Conference of the NAACP v. Husted, affirming District Judge Peter Economus's decision earlier this month issuing a preliminary injunction enjoining the Ohio legislature's amendments to the election code that limited early in-person voting.

The Sixth Circuit rejected Ohio Secretary of State Husted's claim that the district judge's extensive findings of fact were clearly erroneous.  Likewise, the Sixth Circuit rejected the argument that the district judge should have applied rational basis scrutiny in the equal protection claim, holding that the district judge was correct in applying the "flexible Anderson-Burdick" test, articulated as

A court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs’ rights.”

Burdick v. Takushi, 504 U.S. 428, 434 (1992).  The Sixth Circuit moreover found that the district judge applied the test correctly. The opinion specifically discussed Ohio's asserted  justifications - - - preventing voter fraud, containing costs, and uniformity - - - and found that Ohio did not demonstrate that these interests outweighed the burdens on voters.

In the last third of the opinion, the court analyzed the Section 2, Voting Rights claim  (Voting Rights Act of 1965, 42 U.S.C. § 1973), again agreeing with the district judge.

This means that the Sixth Circuit validated the district judge's order requiring early voting provisions that become effective in just a few days, on September 30.

Ohio has already filed an application to the United States Supreme Court for a stay.  As Sixth Circuit Justice, Justice Kagan may rule on the application or refer it to the full Court.

  Voter-registration

 

September 26, 2014 in Current Affairs, Elections and Voting, Equal Protection, Federalism, Opinion Analysis | Permalink | Comments (1) | TrackBack (0)

Monday, September 22, 2014

CFP: Ferguson Conference at University of Missouri School of Law

A call that should be of interest to many ConLawProfs:

Policing, Protesting, and Perceptions:

A Critical Examination of the Events in Ferguson

at the University of Missouri

800px-Memorial_to_Michael_Brown
image via

 

Here are some details on the call for works-in-progress:

 The University of Missouri Law Review is issuing a call for proposals for an upcoming Works-in-Progress conference, which will be held on Thursday, February 26, 2015 in conjunction with the Missouri Law Review’s Symposium, which will take place the following day Friday, February 27, 2015. The symposium, "Policing, Protesting, and Perceptions: A Critical Examination of the Events in Ferguson," focuses on a number of issues that arose from the events in Ferguson, Missouri this past August following the shooting of Michael Brown, and will include a number of invited panelists. Marc Mauer, the Executive Director of The Sentencing Project, will deliver the keynote address. On Thursday, February 26, 2015, the Missouri Law Review will host several works-in-progress panels related to the subject matter of the symposium.

If you interested, we would ask that you submit a presentation proposal. Presentation proposals should be no more than one page in length. The topic of the presentation can include analyses that are practical, theoretical or interdisciplinary in nature relating to what transpired in Ferguson, MO. Proposals from scholars outside the United States are also welcome, although prospective attendees should note that there is no funding available to assist participants with their travel expenses. Proposals for the works-in-progress will be accepted until November 15, 2014. Those interested may submit proposals and direct questions to Professor S. David Mitchell (MitchellSD AT missouri.edu). Decisions regarding accepted proposals will be made by December 1, 2014. 

September 22, 2014 in Conferences, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Interpretation, Race, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, September 18, 2014

Ninth Circuit Again Upholds School Ban of American Flag on Cinco de Mayo

Recall that in February of 2014, a panel of the Ninth Circuit in Dariano v. Morgan Hill Unified School District rejected a claim by students that their constitutional rights were violated when school officials banned their American flag clothing during a Cinco de Mayo celebration.

The en banc Ninth Circuit has now denied en banc review, over a dissent, and issued an amended panel opinion which adds several paragraphs of analysis.

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flag jacket via

Dissenting from the denial of rehearing en banc, Judge O’Scannlain, joined by Judges Tallman and Bea, argued that the reaction of other students to the flag-clothing wearing students amounted to a " heckler’s veto" which the panel wrongly validated.  Moreover, the dissent argued that this created a circuit split with the Seventh Circuit, relying on Zamecnik v. Indian Prairie School District No. 204, decided in 2011. Judge Posner's opinion in Zamecnik concluded that the students wearing the "Be Happy Not Gay" t-shirt was protected by the First Amendment (although  importantly Posner did not highlight any possible violence in that case).   The dissenting opinion from en banc review by O'Scannlain does not include the Sixth Circuit's Bible Believers v. Dearborn County decided less than a month ago in which the court extensively analyzed the heckler's veto doctrine and found the speech could be limited.  As to the "confederate flag" cases on which the original panel relied, the dissent from en banc review by O'Scannlain distinguished situations dealing  "solely with a symbol that is 'widely regarded as racist and incendiary.'” 

In its amended opinion, the panel added three paragraphs that presumably address some of these concerns.  The amended opinion now includes:

We recognize that, in certain contexts, limiting speech because of reactions to the speech may give rise to concerns about a “heckler’s veto.” [fn 7] But the language of Tinker and the school setting guides us here. Where speech “for any reason . . . materially disrupts classwork or involves substantial disorder or invasion of the rights of others,” school officials may limit the speech. Tinker, 393 U.S. at 513. To require school officials to precisely identify the source of a violent threat before taking readily-available steps to quell the threat would burden officials’ ability to protect the students in their charge—a particularly salient concern in an era of rampant school violence, much of it involving guns, other weapons, or threats on the internet—and run counter to the longstanding directive that there is a distinction between “threats or acts of violence on school premises” and speech that engenders no “substantial disruption of or material interference with school activities.” Id. at 508, 514; see also id. at 509, 513.

 

In the school context, the crucial distinction is the nature of the speech, not the source of it. The cases do not distinguish between “substantial disruption” caused by the speaker and “substantial disruption” caused by the reactions of onlookers or a combination of circumstances. See, e.g., Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 38, 38 n. 11 (10th Cir. 2013) (observing that “Plaintiffs note that most disruptions occurred only because of wrongful behavior of third parties and that no Plaintiffs participated in these activities . . . . This argument might be effective outside the school context, but it ignores the ‘special characteristics of the school environment,’” and that the court “ha[d] not found[] case law holding that school officials’ ability to limit disruptive expression depends on the blameworthiness of the speaker. To the contrary, the Tinker rule is guided by a school’s need to protect its learning environment and its students, and courts generally inquire only whether the potential for substantial disruption is genuine.” (quoting Tinker, 393 U.S. at 506)); Zamecnik, 636 F.3d at 879–80 (looking to the reactions of onlookers to determine whether the speech could be regulated); Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1272 (11th Cir. 2004) (looking to the reactions of onlookers to determine whether a student’s expression “cause[d] (or [was] likely to cause) a material and substantial disruption”) (alterations and internal quotation marks omitted).

 

Perhaps no cases illustrate this principle more clearly than those involving displays of the Confederate flag in the school context. We respect the American flag, and know that its meaning and its history differ greatly from that of the Confederate flag. Nevertheless, the legal principle that emerges from the Confederate flag cases is that what matters is substantial disruption or a reasonable forecast of substantial disruption, taking into account either the behavior of a speaker—e.g., causing substantial disruption alongside the silent or passive wearing of an emblem—or the reactions of onlookers. Not surprisingly, these cases also arose from efforts to stem racial tension that was disruptive. Like Dariano, the reasoning in these cases is founded on Tinker. See, e.g., Hardwick, 711 F.3d at 437 (Fourth Circuit case upholding school officials’ ban on shirts with labels like “Southern Chicks,” “Dixie Angels,” and “Daddy’s Little Redneck,” and the Confederate flag icon, even though the bearer contended that hers was a “silent, peaceable display” that “even drew positive remarks from some students” and “never caused a disruption” because “school officials could reasonably forecast a disruption because of her shirts” (internal quotation marks omitted)); A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 223 (5th Cir. 2009) (noting that “[o]ther circuits, applying Tinker, have held that administrators may prohibit the display of the Confederate flag in light of racial hostility and tension at their schools”); Barr v. Lafon, 538 F.3d 554, 567–68 (6th Cir. 2008) (noting the “disruptive potential of the flag in a school where racial tension is high,” and that “[o]ur holding that the school in the circumstances of this case reasonably forecast the disruptive effect of the Confederate flag accords with precedent in our circuit as well as our sister circuits”).[fn8]

Whether these additional paragraphs are sufficient to ameliorate the concerns that might be raised in a petition for certiorari is now the question.

 

September 18, 2014 in Courts and Judging, Equal Protection, Federalism, First Amendment, History, Opinion Analysis, Race, Speech | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 17, 2014

Seventh Circuit Gives Wisconsin Voter ID a Go-Ahead

A three-judge panel of the Seventh Circuit last week threw a wrench into the November election in Wisconsin by staying an earlier district court ruling and injunction against the state's voter ID law, thus allowing the law to take effect immediately. The problem: some people have already cast absentee ballots without providing ID. More: some 11,800 voters requested absentee ballots before the panel's ruling, and thus under the assumption that they wouldn't have to provide ID. According to the Milwaukee Journal Sentinel, the director of the state Government Accountability Board is directing clerks to contact voters who requested an absentee ballot and tell them they need to provide an ID. He said that absentee ballots from voters who do not provide IDs won't be counted.

And this says nothing about the inevitable confusion at the polls.

There's another problem, the original one that sparked the litigation in the first place. That is, some 300,000 registered voters in Wisconsin, mostly poor and disproportionately racial minorities, lack a qualifying ID for voting, according to U.S. District Court Judge Lynn Adelman, who ruled in an exhaustive opinion last April that the law was unconstitutional and enjoined its enforcement. 

The Seventh Circuit panel order undoes Judge Adelman's injunction. The panel wrote that

[a]fter [Judge Adelman's] decision, the Supreme Court of Wisconsin revised the procedures to make it easier for persons who have difficulty affording any fees to obtain the birth certificates or other documentation needed under the law, or to have the need for documentation waived. This reduces the likelihood of irreparable injury . . . . The panel has concluded that the state's probability of success on the merits of this appeal is sufficiently great that the state should be allowed to implement its law, pending further order of this court.

While the panel's brief, one-page order is not a final ruling on the merits (that will come "in due course"), it presages the likely final merits ruling. 

But the most recent move by the plaintiffs may preempt that. The plaintiffs asked the full en banc Seventh Circuit to review the panel's decision. The full bench would have to act quickly, because the absentee election is already underway.

The Seventh Circuit is the same court that upheld Indiana's voter ID law, later also upheld by the Supreme Court in Crawford v. Marion County. (That law, according to the panel last week, is "materially identical" to Wisconsin's law). But Judge Posner (who was on the panel in the Indiana case, but not on the panel in the Wisconsin case) wrote last year that Indiana's voter ID law is "now widely regarded as a means of voter suppression rather than fraud prevention," suggesting that his opinion on voter ID changed. We may find out, if the full Seventh Circuit takes up the case.

 

September 17, 2014 in Cases and Case Materials, Elections and Voting, Equal Protection, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Sunday, September 7, 2014

Ohio Federal Judge Rules State's New Voting Scheme Violates Equal Protection

In his 71 page  opinion in Ohio State Conference of the NAACP v. Husted, Judge Peter Economus has issued a preliminary injunction enjoining the Ohio legislature's amendments to the election code that limited early in-person voting.

This opinion is the latest installment in the early voting controversies in Ohio.  Recall that Judge Economus issued an order and opinion two years ago  enjoining the enforcement of new Ohio legislation and specifically restoring in-person early voting on the three days preceding Election Day for all eligible voters.   The Sixth Circuit, in its opinion in Obama for America v. Husted, upheld the injunction.  

580px-Seal_of_the_Ohio_Elections_Commission.svgAfter that controversy, the Ohio legislature enacted SB 238, which had the effect of eliminating the so-called "Golden Week," the period when citizens could both register to vote and cast their ballots at the same time.   The Ohio Secretary of State, Jon Husted, also issued directives setting uniform early in-person (EIP) voting hours for the entire state, eliminating evening voting hours and most Sunday voting during the EIP periods.

Much of the judge's opinion considers the various expert and other evidence regarding the effect of these changes.  Ultimately, Judge Economus found that the changes violated the equal protection rights of certain groups, relying heavily on the Sixth Circuit's opinion in Obama for America v. Husted and Bush v. Gore.

Here's the judge's penultimate paragraph on the equal protection claim:

The Court must now weigh the significant burdens placed on voting by SB 238 and Directive 2014-17 against the offered justifications. As stated above, the Court has found these justifications to be relatively hollow, and, in some cases, not necessarily supported by logic. Accordingly, while the burdens imposed on the voting rights of African Americans, lower income voters, and the homeless are not severe, it cannot be said that they are outweighed by the offered justifications. For instance, there is virtually nothing in the record tending to justify why a uniform voting schedule could not include evening voting hours and additional Sunday voting, especially considering that such voting opportunities have been successfully offered by individual counties in past elections. While the Defendants have frequently noted that Ohio’s system of absentee voting is one of the most expansive in the entire Country, one of the touchstones of the Fourteenth Amendment’s Equal Protection guarantee in the context of voting rights is that actions of a State must “avoid arbitrary and disparate treatment of the members of its electorate.” Bush v. Gore, 531 U.S. 98, 105 (2000). Here, despite the expansiveness of Ohio’s voting system, the weakness of the offered justifications supporting SB 238 and Directive 2014-17 render them essentially arbitrary action when viewed against the burdens they impose on groups of voters. Such action is prohibited by the Equal Protection Clause. Thus, the Court’s conclusions regarding the Plaintiffs’ Equal Protection claim are easily summarized as follows: SB 238 and Directive 2014-17 arbitrarily make it harder for certain groups of citizens to vote.

On the nonconstitutional claim, §2 of the Voting Rights Act, the judge likewise found that there was a substantial likelihood that the challengers could prevail on the merits of their claim.

The judge entered a preliminary injunction regarding early voting for the November 2014 election, the first provisions of which are effective September 30.  If the state is to appeal, it will need to move quickly.

September 7, 2014 in Elections and Voting, Equal Protection, Opinion Analysis, Race | Permalink | Comments (0) | TrackBack (0)

Thursday, September 4, 2014

Seventh Circuit Declares Same-Sex Marriage Prohibitions of Two States Unconstitutional

The Seventh Circuit heard oral arguments in Baskin v. Bogan and Wolf v. Walker were just last week.  Today, the court issued its unanimous opinion affirming the district court findings that the same-sex marriage bans in Indiana and Wisconsin are unconstitutional. 

The Seventh Circuit panel enjoined the states from enforcing the laws and did not issue a stay.

Judge Richard Posner (pictured right) who is perhaps the most well-known judge not on the United States Supreme Court and who attracted attention with his comments at the oral argument, perhaps not surprisingly wrote the 40 page opinion. 

441px-Richard_Posner_at_Harvard_UniversityPosner begins by implying the state laws before the court are outliers:

Indiana and Wisconsin are among the shrinking majority of states that do not recognize the validity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are lawful.

The panel's decision is based entirely on equal protection doctrine under the Fourteenth Amendment.  Here's Judge Posner introducing the concept that

comes wrapped, in many of the decisions applying it, in a formidable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest. We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage.

However, Judge Posner's analysis draws heavily on his work in law and economics, implying that cost-benefit analysis deserves more attention that the "conventional approach"  - - - which "doesn’t purport to balance the costs and benefits of the challenged discriminatory law" - - - gives it.  For Posner:

Our pair of cases is rich in detail but ultimately straight- forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

9780674802803Judge Posner doesn't cite his own 1992 book, Sex and Reason, but he could have.  And the rhetorical style and much of the reasoning in this opinion echoes the book, which was widely debated.

Judges Williams and Hamilton apparently agreed.

If the cases go en banc or to the Supreme Court, it will be interesting to see if any of the law and economics rationales are prominent.

 

 

September 4, 2014 in Courts and Judging, Equal Protection, Family, Fundamental Rights, Gender, Opinion Analysis, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 3, 2014

Louisiana Federal Judge Upholds State's Same-Sex Marriage Ban

Breaking the spate of federal decisions that have invalidated state same-sex marriage prohibitions, federal district judge Martin Feldman of the Eastern District of Louisiana today upheld the constitutionality of that state's ban in his 32 page  opinion in Robicheaux v. Caldwell. 

Judge Feldman rejects the equal protection claim (the "most hefty constitutional issue") and the due process claim, as well as rejecting any heightened scrutiny within those claims and any extension of Windsor to state same-sex marriage bans. In applying rational basis, the judge found that the "central state interest of linking children to an intact family formed by their biological parents" and of "even more consequence," the "legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through democratic consensus," was sufficient.

The theoretical underpinnings of the judge's rationale are a preference for states' rights,  democratically enacted provisions, tradition, and a judicial practice of being "circumspect." 

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Judge Feldman's opinion credits notions of formal equality and the slippery slope.  For example, in rejecting the analogy to Loving v. Virginia, Judge Feldman writes:  "no analogy can defeat the plain reality that Louisiana's laws apply evenhandedly to both genders--whether between two men or two women."   This evenhandedness was precisely the argument Virginia unsuccessfully advanced in Loving when it argued that under its miscengenation statute, both whites and blacks would be prosecuted.  At another point, Judge Feldman states:

Perhaps in a new established point of view, marriage will be reduced to contract law, and, by contract, anyone will be able to claim marriage. Perhaps that is the next frontier, the next phase of some "evolving understanding of equality," where what is marriage will be explored. And as plaintiffs vigorously remind, there have been embattled times when the federal judiciary properly inserted itself to correct a wrong in our society. But that is an incomplete answer to today's social issue. When a federal court is obliged to confront a constitutional struggle over what is marriage, a singularly pivotal issue, the consequence of outcomes, intended or otherwise, seems an equally compelling part of the equation. It seems unjust to ignore. And so, inconvenient questions persist. For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minors marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs.

Judge Feldman acknowledged that his decision departed from the recent trend, but quoted from the dissenting opinion in the Fourth Circuit's decision in Bostic v. Schaefer.

As Judge Feldman also stated:

Clearly, many other courts will have an opportunity to take up the issue of same-sex marriage; courts of appeals and, at some point, the U.S. Supreme Court. The decision of this Court is but one studied decision among many. Our Fifth Circuit has not yet spoken.

Whether or not the case is appealed to the Fifth Circuit, the issue seems sure to be heard by the United States Supreme Court.

September 3, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Wednesday, August 27, 2014

Sixth Circuit Rejects First Amendment Challenge by "Bible Believers" Excluded From "Arab International Festival"

A divided Sixth Circuit considered the problem of the hecklers' veto, as well as free exercise and equal protection claims, in its opinion today in Bible Believers v. Dearborn County, with the majority of the panel finding that the district judge's grant of summary judgment in favor of the government should be affirmed.

450px-Megaphone-redThe controversy arose when a group known as the "Bible Believers," Evangelical Christians, came to the Arab International festival on the streets of Dearborn, Michigan - - - as they had done the year before - - - to "preach."  Their speech included "strongly worded" slogans on signs, t-shirts, and banners (e.g., "Islam Is A Religion of Blood and Murder"),  a "severed pig's head on a stick" (intended to protect the Bible Believers by repelling observers who feared it), statements through a megaphone castigating the following of a "pedophile prophet" and warning of "God's impending judgment."   A crowd gathered, seemingly mostly of children, who yelled back and threw items at the preachers.  A law enforcement asked the Bible Believers to leave, and - when pressed - saying they would be cited for disorderly conduct: "You need to leave. If you don’t leave, we’re going to cite you for disorderly. You’re creating a disturbance. I mean, look at your people here. This is crazy!”  They were eventually escorted out. 

On the free speech claim, the opinion written by Judge  Bernice Donald found there was little disagreement that the Bible Believers "engaged in protected speech" and "that the Festival constituted a traditional public forum." 

More contentious, however, was whether the  government's actions were "content neutral."  The court first concluded that the operations plan was to "ensure safety and keep the peace" and thus to be evaluated under the standard of Ward v. Rock Against Racism.   But the court also extensively analyzed whether the heckler's veto principle was operative: "[l]isteners’ reaction to speech is not a content-neutral basis for regulation,” citing Forsyth Cnty. v. Nationalist Movement (1992).  Yet raising listener "reactions" circles back to the issue of whether the speech was protected and the court  discussed two Supreme Court cases from the mid-twentieth century—Terminiello v. City of Chicago, 337 U.S. 1 (1949), and Feiner v. New York, 340 U.S. 315 (1951)— as providing "some initial boundaries for the heckler’s veto doctrine."   In applying these cases, as well as Cantwell v. Connecticut, 310 U.S. 296 (1940) (as Sixth Circuit precedent), the court, referencing a video from Festival incident, found that there was actual violence and that law enforcement was simply discharging their duty to maintain the peace and removing the speakers for their own protection.

For Judge Eric Clay, dissenting, "law enforcement is principally required to protect lawful speakers over and above law-breakers."  Judge Clay also notes that it was the government that moved for summary judgment and that reliance on a video is problematical:

The key fact in our case, by contrast, is the question of Plaintiffs’ intent. That is not a fact shown on the videotape—it is an idea that existed in the mind of the speakers. Jurors might conceivably find an intent to incite based on inferences drawn from Plaintiffs’ sermonizing. We judges are prohibited from doing so.

While there are free exercise, equal protection, and municipal liability isses, the majority treats these summarily, and clearly the central issue is speech that provokes - - - and may be intended to provoke - - - a violent reaction from a crowd. 

August 27, 2014 in Equal Protection, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Religion, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, August 21, 2014

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

In his 33 page  opinion  today in Brenner v. Scott, Judge Robert Hinkle of the Northern District of Florida found that Florida's same-sex marriage bans in the constitution as Article I §27 and Florida Statutes § 741.04(1) violated the Fourteenth Amendment.

Judge Hinkle first determined that the "right asserted by the plaintiffs is a fundamental right as that term is used in due-process and equal-protection jurisprudence," noting that almost every court that has addressed the issue since the Supreme Court’s 2013 decision in Windsor has said the answer is yes, and concluded that that "view is correct."  Given that there is a fundamental right, he continued:

That leaves for analysis the second step, the application of strict scrutiny. A state may override a fundamental right through measures that are narrowly tailored to serve a compelling state interest. A variety of justifications for banning same- sex marriages have been proffered by these defendants and in the many other cases that have plowed this ground since Windsor. The proffered justifications have all been uniformly found insufficient. Indeed, the states’ asserted interests would fail even intermediate scrutiny, and many courts have said they would fail rational- basis review as well. On these issues the circuit decisions in Bostic, Bishop, and Kitchen are particularly persuasive. All that has been said there is not repeated here.

Judge Hinkle did take the opportunity, however, to specifically discuss the procreation argument, finding that "Florida has never conditioned marriage on the desire or capacity to procreate."

Like other judges, Judge Hinkle used Justice Scalia's dissenting language from Lawrence v. Texas to note that moral disapproval in the marriage context is the same as moral disapproval in the sodomy context. 

Judge Hinkle's opinion then analyzed the requirements for a preliminary injunction, finding them satisfied. But he also held that a stay was warranted; it would have been difficult to rule otherwise in light of the previous stays, including the one just yesterday by the United States Supreme Court.

August 21, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2014

Can City of Ocala Ban the Saggy Pants Style on Government Property?

This summer, the city of Ocala, Florida passed Ordinance 2014-44 , prohibiting the style of saggy pants on city property.  Tonight, the city officials will reconsider the ordinance in light of threatened legal action.

Ocala is not the first municipality to try to ban the style.  But these bans have constitutional issues.  While First Amendment challenges of free expression have not been successful on the grounds that the style does not convey the necessary particularized message,  challenges based on substantive due process do have merit. 

The ordinances generally state as their purposes "decency" and "morals," but there is a problem prohibiting showing underwear.  Here's the language from the Ocala ordinance:

It is unlawful for any person, while on city owned property, to knowingly or intentionally wear pants below the person's natural waistline in a manner that leaves the person's underwear or bare buttocks exposed. A person's underwear is "exposed" if, when measured vertically, more than two inches of it is visible. A person's bare buttocks is "exposed"person's intergluteal cleft is visible.

 As a judge from another Florida city - - - Riveria Beach - - - held, such a ban violates basic liberty interests under the due process clause.  As for the "intergluteal cleft" being visible, there are real questions whether that can constitutionally be included in "indecent exposure." 

It is oft-stated that "saggy pants" are a foolish style.  But fashions, of course, change.  In a 1937 case, People v. O’Gorman, 274 N.Y. 284, 8 N.E.2d 862 (1937),  New York’s highest court struck down a Yonkers ordinance that prohibited any person over the age of 16 from appearing in public “in a bathing costume” or “in other than customary street attire.”   The defendants included a woman who wore “white sandals, no stockings, yellow short pants and a colored halter, with a yellow jacket over it and no hat”  and a man who “had on white sneakers, white anklets, short socks, yellow trunks, short pants, a blue polo shirt, brown and white belt, no hat.”  Maybe they looked “foolish” to their contemporaries, but as the court declared, the “Constitution still leaves some opportunity for people to be foolish if they so desire.”  

Moreover, it's important to be attentive to the equal protection problems that the criminalization of saggy pants raises.

There is more discussion and analysis of saggy pants bans and the limits of criminalizing indecent exposue in Dressing Constitutionally (Cambridge University Press, 2013).

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August 20, 2014 in Current Affairs, Due Process (Substantive), Equal Protection, Fourteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 13, 2014

Fourth Circuit Denies Stay in Virginia Same-Sex Marriage Case

Without analysis, the Fourth Circuit today in Bostic v. Schaeffer entered its  Order denying the stay of its opinion that Virginia's ban on same-sex marriage violates the Fourteenth Amendment.

Here's the text of the Order:

Upon consideration of submissions relative to the motion to stay mandate, the court denies the motion.

Entered at the direction of Judge Floyd with the concurrence of Judge Gregory. Judge Niemeyer voted to grant the motion.

The 2-1 division of the panel is the same as the division in the opinion on the merits, which we analyzed here.

The saga will undoubtedly continue. 

August 13, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 12, 2014

Daily Read: Behre on Empiricism, Equality, and Fathers Rights

Kelly A. Behre's forthcoming article, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, 21 Wm. & Mary J.  Women & L. (forthcoming 2014), available at SSRN, is the topic of my piece for JOTWELL: Things We Like Lots in the Equality section.  I think that

Behre-kellyBehre’s article is worth reading for its “deep dig” into the reality, rhetoric, and social science of “fathers’ rights.” Gender equality in family law remains worthy of our attention. But Behre’s article is also worth reading for its applicability to issues involving “reverse discrimination,” “color-blindness,” or formal equality, in which similar empirical underpinnings promote continued subordination. Digging beneath the equality rhetoric does not only unearth profound differences in the meanings of equality, it may also surface a dirty study.

If nothing else, Behre's careful tracing of incorrect citations and descriptions will make one want to double-check those sources in one's latest writing.

 

August 12, 2014 in Equal Protection, Family, Gender, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, August 7, 2014

CFP: AALS on Sex, Gender, and Law

Call for Presentations and Papers

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Association of American Law Schools
 
AALS Workshop on Next Generation Issues on
Sex, Gender and the Law
 
June 24-26, 2015
Doubletree by Hilton at the Entrance to Universal Studios
Orlando, Florida


 
 
Here's the CFP:

After more than forty years of formal sex equality under the law, this 2015 workshop will ask legal academics to look ahead to the future and identify, name, and analyze the next generation of legal issues, challenges, and questions that advocates for substantive gender equality must be prepared to consider.  To this end, we seek paper and presentation proposals that not only pinpoint and examine future law-related concerns about gender equality but that also provide innovative new approaches to achieving equality for women and those who challenge gender norms in our society, with a particular attention to employment, violence against women, reproductive rights, women's poverty, and women in legal education.
 
Our hope is to build on the insights of the participants in the 2011 AALS Workshop on Women Rethinking Equality by exploring new and forward-looking ideas for scholarship, law reform, and advocacy that can bring about women's equality.  An additional expectation is that each session will address the ways in which characteristics other than gender, including race, sexual orientation, immigration status, socioeconomic class, and disability, impact women's lives.  We also anticipate that each session will analyze the institutional strengths and weaknesses of courts, legislatures, and administrative bodies for bringing about change and offer suggestions for legal reforms that can better meet women's needs.  Our final goal is to provide a rich and supportive atmosphere to foster mentoring and networking among teachers and scholars who are interested in women's equality and the law.

 
The format of the workshop will involve plenary sessions, concurrent sessions drawn from this Call for Presentations and Papers, and a closing panel. The closing panel, also drawn from this Call, will consist of a brainstorming session to consider projects and proposals for proactive measures to bring about gender equality.
 
Concurrent Sessions
 
The concurrent sessions will feature presentations related to gender equality issues, with preference given to presentations by junior scholars and those proposals related to the topics of employment, violence against women, reproductive rights, women's poverty, and women in legal education.  We will organize the presentations into panels based on the subject matter of the proposals.  Each presentation will last for 15 minutes, followed by questions from the moderator and audience.
 
Interested faculty should submit a brief written description (no more than 1000 words) of the proposed presentation, along with his or her resume.  Please e-mail these materials to 15wksp@aals.org by September 15, 2014.  We will notify selected speakers by November 1, 2014.
 
Brainstorming Proposals
 
The final plenary session of the conference will consist of 10-12 five-minute presentations of ideas for future projects that will advance gender equality in the law.  Each selected participant will be limited to five minutes to present his or her idea or project. The presentations will be followed by audience feedback and comments.  Although we will grant preference to presentations by junior scholars and those proposals related to the topics of employment, violence against women, reproductive rights, women's poverty, and women in legal education for the concurrent sessions, we welcome proposals for this brainstorming session on any topic related to gender equality.
 
Interested faculty should submit a written description of the proposed presentation (no more than 1000 words), along with his or her resume.  Please e-mail these materials to 15wksp@aals.org by September 15, 2014.  We will notify selected speakers by November 1, 2014.
 

August 7, 2014 in Conferences, Equal Protection, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)