Thursday, September 18, 2014
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.
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.
Wednesday, September 17, 2014
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.
Sunday, September 7, 2014
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.
After 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.
Thursday, September 4, 2014
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.
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.
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.
Wednesday, September 3, 2014
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."
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.
The 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.
Thursday, August 21, 2014
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
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).
Wednesday, August 13, 2014
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.
Tuesday, August 12, 2014
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’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.
Thursday, August 7, 2014
Call for Presentations and Papers
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
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.
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 firstname.lastname@example.org by September 15, 2014. We will notify selected speakers by November 1, 2014.
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 email@example.com by September 15, 2014. We will notify selected speakers by November 1, 2014.
Friday, August 1, 2014
Affirming the opinion of United States District Judge Deborah Batts, the Second Circuit's opinion in American Atheists v. Port of Authority of NY and NJ held that there is no Establishment Clause violation when the National Museum at the former World Trade Center towers destroyed on September 11, often colloquially known as the "Ground Zero" Museum or the September 11 Museum, chose to display a large Latin cross.
Importantly, the cross is placed in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” as part of the September 11 historical narrative. On appeal, the American Atheists seemingly narrowed the original challenge and argued that the defendants "impermissibly promote Christianity in violation of the Establishment Clause and deny atheists equal protection of the laws by displaying The Cross at Ground Zero in the Museum unaccompanied by some item acknowledging that atheists were among the victims and rescuers on September 11."
The unanimous panel's 42 page opinion applies Lemon v. Kurtzman to the Establishment Clause issue and much more briefly considers the equal protection argument.
Here's the court's summary of its conclusion:
1. Displaying The Cross at Ground Zero in the National September 11 Museum does not violate the Establishment Clause because:
a. the stated purpose of displaying The Cross at Ground Zero to tell the story of how some people used faith to cope with the tragedy is genuine, and an objective observer would understand the purpose of the display to be secular;
b. an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled “Finding Meaning at Ground Zero”; the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context; and
c. there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.
2. In the absence of any Establishment Clause violation or any evidence of discriminatory animus toward atheists, the Museum did not deny equal protection by displaying The Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.
It would be doubtful if this case goes any further; the cross at the museum looks as if it is there to stay.
Tuesday, July 29, 2014
Divided Fifth Circuit Upholds Preliminary Injunction Against Mississippi's Restrictive Abortion Law HB 1390
A panel of the Fifth Circuit in its opinion today in Jackson Women's Health Organization v. Currier upheld the district judge's injunction against the enforcement of a restrictive abortion statute known as Mississippi HB 1390.
The statute required physicians performing abortions to have admitting privileges to a nearby hospital. As the court noted, a similar provision in Texas (HB 2) was recently upheld by the Fifth Circuit in Planned Parenthood of Texas Surgical Providers v. Abbott. As to the rational basis of such a law, the panel stated it was "bound" by Abbott as precedent to accept that the Mississippi statute survives a constitutional challenge.
Regarding undue burden, however, the panel majority, in an opinion by Judge E. Grady Jolly (who interestingly hails from Mississippi) and joined by Judge Stephen Higginson, the effects of HB 1390 were relevant in this as-applied challenge. In assessing the undue burden, the court found it highly relevant that “if enforced, the admitting privileges requirement would likely require JWHO, the only currently licensed abortion facility in Mississippi, to lose its license.” The panel rejected the State's attempt to "walk back" this statement - - - which is actually a quote from the State's opening brief - - - as "too little, too late." Additionally, the majority found it important that the hospitals had rejected the physicians' applications for admitting privileges based on the fact that the physicians performed abortions.
The central - - - and exceedingly interesting - - - question of the undue burden analysis is the relevance of the clinic's status as the only abortion clinic remaining in Mississippi. The State argued that there is no undue burden because women could travel to another state and many of these distances would not be unduly burdensome in and of themselves. Recall that in Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992) the plurality opinion rejected the contention that traveling long distances constituted an undue burden. But, as Judge Jolly notes, there was no suggestion that women should have to go to neighboring states in Casey or in any other opinion, and there is at least one circuit court opinion that finds it "dispositive" that women had to leave the state to exercise their constitutional right.
Additionally - - - and this is the interesting part - - - the court relies upon State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) in the United States Supreme Court rejected Missouri's argument that its failure to admit an African-American man to its law school was essentially cured by its offer of a tuition stipend to allow Mr. Gaines to attend law school in another state. Here's the passage from Gaines that Judge Jolly finds worthy of quoting at length:
[T]he obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. . . . That obligation is imposed by the Constitution upon the States severally as governmental entities, —each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system.
Id. at 350. Judge Jolly admits that Gaines can be distinguished, but finds Gaines nevertheless determinative: " a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights."
In a lengthy and somewhat vehement dissent - - - complete with quotations from Albert Camus - - - Senior Judge Emilio Garza finds many things to criticize in the majority's opinion, including the majority's failure to recognize there is not sufficient state action for a constitutional claim (it is the hospitals denying admitting privileges rather than the statute that are the cause); the majority's failure to honor the distinction between equal protection (as in Gaines) and due process (in the abortion context); the majority's belief that there is relevance to crossing state lines (given the constitutional right to travel across state lines articulated in Saenz v. Roe); the majority's failure to recognize that Casey is nothing more than a "verbal shell game" (quoting Justice Scalia's dissent in Casey); the majority's recognition of the "liberty" interest (quotes in original) in the Due Process Clause; and the majority's participation in "aggrandizement of judicial power."
But the central issue of federalism including not only states' rights but states' responsibilities raised by this opinion and litigation is one that merits close consideration.
July 29, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, July 28, 2014
Affirming the federal district judge's decision in February, a panel of the Fourth Circuit in a divided opinion has held in Bostic v. Schaefer that Virginia's same-sex marriage prohibitions are unconstitutional.
violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples’ lawful out-of-state marriages.
At various times, the court blends Due Process and Equal Protection analysis and precedent, but both spring from its conclusion that "marriage" is a fundamental right and that "marriage" includes same-sex marriage. After discussing Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley, the court notes:
These cases do not define the rights in question as “the right to interracial marriage,” “the right of people owing child support to marry,” and “the right of prison inmates to marry.” Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right. The Supreme Court’s unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of “freedom of choice,” Zablocki, 434 U.S. at 387, that “resides with the individual,” Loving, 388 U.S. at 12. If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed.
The court's use of "couplings" implicitly addresses a portion of the oft-called slippery slope argument that is raised by Judge Paul Niemeyer in his dissent: what would prevent this rationale from extending to polygamy? The dissent also invokes incest, accusing the majority of "dictionary jurisprudence" when it (re)defines marriage to include same-sex marriage. But of course, the definitional conundrum plagues the dissent as well, when it argues that certain qualities are "foundational" to marriage and other qualities are "irrelevant." For the dissent, this is the "biological link between procreation and marriage," a link that does exist in the polygamous and incestuous marriages the dissent disapproves.
For the majority, after finding marriage a fundamental right deserving of strict scrutiny, the five governmental interests argued as supporting the marriage laws not surprisingly fail to pass constitutional muster:
- (1) Virginia’s federalism-based interest in maintaining control over the definition of marriage within its borders,
- (2) the history and tradition of opposite-sex marriage,
- (3) protecting the institution of marriage,
- (4) encouraging responsible procreation, and
- (5) promoting the optimal childrearing environment.
More surprising is that although these interests are raised by the parties the court calls the "Proponents" of the Virginia marriage laws, there is little in the court's opinion that analyzes their standing to appeal. The court does analyze the standing of the plaintiffs to sue the defendants George Schaefer III (in his official capacity as Clerk of Court for Norfolk Circuit Court) and Janet Rainey (in her official capacity as State Registrar of Vital Records). And since these parties were indeed defendants, there may be little need for an extensive analysis of appellate standing as was necessary in the same-sex marriage cases decided by the United States Supreme Court in June 2013. Nevertheless, recall that the (new) Virginia Attorney General had decided during the district court litigation that the Virginia laws were unconstitutional and filed a notice of change of position; however the laws continued to be enforced.
The Fourth Circuit thus joins the Tenth Circuit in holding that a state's same-sex marriage ban violates the Fourteenth Amendment. While these circuit court opinions are divided, the dozen or so federal district judges who have considered the issue have been unanimous in reaching the same conclusion.
July 28, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, State Constitutional Law, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Monday, July 21, 2014
Today President Obama signed an Executive Order: "Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity."
Basically, the Order broadens the grounds of prohibited discrimination by the federal government to encompass sexual orientation and gender identity.
Here's the video put out by the White House:
And here are some more specific details:
The Executive Order broadens the terms of prohibited discrimination in federal employment in Executive Order 11478 by President Nixon, as amended to include "sexual orientation" in Executive Order 13087 by President Clinton to now include "gender identity."
It also broadens the terms of prohibited discrimination by federal contractors in Executive Order 11246 issued by Lyndon Johnson to now include "sexual orientation and gender identity."
As the White House Press Release makes clear, the federal contractors Executive Order does not contain an explicit religious exemption, but does preserve the one issued by George W. Bush, Executive Order 13279, which amended 11246 to exempt "a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”
But what about Bush's Executive Order? Entitled "Equal Protection of the Laws for Faith-Based and Community Organizations," the 2002 Executive Order was controversial.
This might be a good time to reread Michele Gilman's terrific article from 2007, If at First You Don't Succeed, Sign an Executive Order: President Bush and the Expansion of Charitable Choice, 15 Wm. & Mary Bill Rts. J. 1103 (2007). Gilman argues that Bush has exceeded his constitutional powers. Her main arguments are about social service providers and grants - - - not at issue in Obama's Executive Order Amendments issued today - - - but she spends a substantial section looking at procurement, including an enlightening discussion of JFK's two executive orders requiring federal contractors to take affirmative action to promote full employment opportunities.
And Gilman's article is a good "test" for those arguing that Obama has exceeded constitutional power by issuing Executive Orders.
While preserving Bush's Order and not including a broader exemption as some had wanted, the Executive Order preserves the status quo. It allows religious entities to discriminate on the basis of religion, but not on any other basis. The White House Press Release adds that "under the First Amendment, religious entities are permitted to make employment decisions about their ministers as they see fit." It does not mention the Religious Freedom Restoration Act, the statute on which last month's controversial Hobby Lobby decision was grounded, allowing a religious exemption from the provision of employee insurance coverage for certain contraception.
Friday, July 18, 2014
What does the Tenth Circuit Court of Appeals panel decide in its 106 page divided opinions in Bishop v. Smith? It's complicated.
But essentially the Tenth Circuit affirms the district judge's opinion finding the Oklahoma ban on same-sex marriage unconstitutional and extends to Oklahoma its own ruling in Kitchen v. Herbert (by this same panel) from a few weeks ago finding Utah's same-sex marriage prohibition unconstitutional.
The complications are caused in part by the procedural posture of the case. For the majority opinion, authored Judge Carlos Lucero, and joined by Judge Jerome Holmes (as was Herbert v. Kitchen), the major issue was the standing of the plaintiffs, specifically on the "redressability" prong of standing. Recall that Oklahoma has both a constitutional amendment and a statute limiting marriage to "a man and a woman" and that the Oklahoma constitutional amendment not only prohibits same-sex marriage but prohibits its recognition even if valid in another state.
The plaintiffs, in a lawsuit filed in 2004 soon after the state constitutional amendment was adopted, challenged only the state constitutional amendment but not the statute.
Affirming the district judge, the Tenth Circuit held plaintiffs nevertheless had standing because "the statutory prohibitions are subsumed in the challenged constitutional provision, an injunction against the latter’s enforcement will redress the claimed injury." However, again affirming the district judge, the plaintiffs did not have standing to challenge the "recognition" portion of the constitutional amendment because the defendant - - - the clerk of court - - - could not redress the non-recognition injury.
This problem as to the non-recognition of marriage claim is further complicated by the fact that the Tenth Circuit, in considering a dismissal of the Governor and Attorney General as defendants who could redress the injury stated - - - or seemed to state? - - - that the Clerk of the Court was the correct defendant. Thus, under a "law of the case" argument, the courts should be bound by that determination. The Tenth Circuit panel decided it was not bound, in part because of the "new evidence" of an affidavit by the Court Clerk describing her duties. It also rejected a nonseverability of the recognition and nonrecognition portions of the provision, finding that because it had not been made earlier it was waived.
As to the merits, the majority held that it was governed by its ruling in Kitchen v. Herbert, although facts and arguments differed "in some respects," the "core holdings are not affected by those differences." The panel majority did discuss two additional arguments: a Baker v. Nelson argument that lower courts were not free to consider doctrinal developments and the addition of a government interest that "children have an interest in being raised by their biological parents."
Judge Holmes concurred separately to discuss why "animus" was not an appropriate analysis. Judge Holmes notes that the district judge "wisely" did not rely on animus, and that most of the other decisions invalidating same-sex marriage laws have "exercised the same forebearance." But, he noted, several other district judges have relied on animus, citing Baskin v. Bogan, Henry v. Himes, DeLeon v. Perry, and Obergefell v. Wymyslo - - - interestingly none of which are in the Tenth Circuit - - - and he used the concurrence to endeavor "to clarify the relationship between animus doctrine and same-sex marriage laws and to explain why the district court made the correct decision in declining to rely upon the animus doctrine."
In his relatively brief partially dissenting opinion, Judge Paul Kelly contended that there was no standing to challenge the constitutional amendment absent a challenge to the statute and would not reach the merits. However, he also disagreed on the merits, as he did in the panel's decision in Kitchen v. Herbert. For Judge Kelly, as he phrases it here:
Removing gender complementarity from the historical definition of marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process. Absent a fundamental right, traditional rational basis equal protection principles should apply, and apparently as a majority of this panel believes, the Plaintiffs cannot prevail on that basis. Thus, any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.
This will be the heart of the matter when - - - rather than if - - - these cases reach the United States Supreme Court. For now, however, the Tenth Circuit stayed its "mandate pending the disposition of any subsequently-filed petition for writ of certiorari."
July 18, 2014 in Courts and Judging, Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Sexual Orientation, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 15, 2014
On Remand, Fifth Circuit Panel Reconsiders UT's Affirmative Action Plan from Fisher v. University of Texas
By a divided opinion in Fisher v. University of Texas at Austin, a panel of the Fifth Circuit has held that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.
Recall that more than a year ago, the United States Supreme Court reversed the Fifth Circuit's finding in favor of the University (affirming the district judge). The Court remanded the case for a "further judicial determination that the admissions process meets strict scrutiny in its implementation." The opinion, authored by Justice Kennedy - - - with only Justice Ginsburg dissenting and Justice Kagan recused - - -specified that the "University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal" of diversity and the University should receive no judicial deference on that point.
Today's Fifth Circuit panel decision, authored by Judge Patrick Higginbotham, and joined by Judge Carolyn Dinen King, first decided that it would consider the case. The panel rejected the standing arguments, including the fact that Abigail Fisher graduated from another university in 2012, because the "actions of the Supreme Court do not allow our reconsideration" of the standing issue. In other words, the Court knew about the standing issues when it remanded the case in June 2013. The panel also carefully considered the Court's remand language: "The judgment of the Court of Appeals is vacated, and the case remanded for further proceedings consistent with this opinion.” Fisher argued that the Court required the Fifth Circuit to perform the reconsideration, while the University of Texas argued that the matter should be remanded to the district judge. On this issue, the Fifth Circuit sided with Fisher, holding that because "there are no new issues of fact that need be resolved, nor is there any identified need for additional discovery; that the record is sufficiently developed; and that the found error is common to both this Court and the district court," a remand to the district judge "would likely result in duplication of effort."
The panel majority's opinion then discussed in detail the University of Texas at Austin's admissions policies and efforts. It noted:
“Narrow tailoring does not require exhaustion of every race neutral alternative,” but rather “serious, good faith consideration of workable race- neutral alternatives that will achieve the diversity the university seeks.” Put simply, this record shows that UT Austin implemented every race-neutral effort that its detractors now insist must be exhausted prior to adopting a race- conscious admissions program—in addition to an automatic admissions plan not required under Grutter that admits over 80% of the student body with no facial use of race at all.
Nevertheless, the panel recognized that this "automatic admissions plan" - - - the Top Ten Percent plan - - - achieves diversity because of the segregation of Texas' high schools. Under the "holistic view" of Grutter for the remaining 20%, absent a consideration of race, the selection would not be racially diverse.
Concluding its 40 page opinion, the panel wrote:
In sum, it is suggested that while holistic review may be a necessary and ameliorating complement to the Top Ten Percent Plan, UT Austin has not shown that its holistic review need include any reference to race, this because the Plan produces sufficient numbers of minorities for critical mass. This contention views minorities as a group, abjuring the focus upon individuals— each person’s unique potential. Race is relevant to minority and non-minority, notably when candidates have flourished as a minority in their school— whether they are white or black. Grutter reaffirmed that “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race still matters.” We are persuaded that to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter. The need for such skill sets to complement the draws from majority-white and majority-minority schools flows directly from an understanding of what the Court has made plain diversity is not. To conclude otherwise is to narrow its focus to a tally of skin colors produced in defiance of Justice Kennedy’s opinion for the Court which eschewed the narrow metric of numbers and turned the focus upon individuals. This powerful charge does not deny the relevance of race. We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix where being white in a minority-majority school can set one apart just as being a minority in a majority-white school—not a proffer of societal discrimination in justification for use of race, but a search for students with a range of skills, experiences, and performances—one that will be impaired by turning a blind eye to the differing opportunities offered by the schools from whence they came.
.... the backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of race towards a critical mass. We have hewed this line here, persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race, faithful to the content given to it by the Supreme Court. To reject the UT Austin plan is to confound developing principles of neutral affirmative action, looking away from Bakke and Grutter, leaving them in uniform but without command—due only a courtesy salute in passing.
Dissenting, Judge Emilio Garza essentially contended that the majority was giving deference to the University. He noted that it is not impossible "for a public university to define its diversity ends adequately for a court to verify narrow tailoring with the requisite exacting scrutiny," even with the use of "critical mass." But he somewhat confusing stressed that
What matters now, after Fisher, is that a state actor’s diversity goals must be sufficiently clear and definite such that a reviewing court can assess, without deference, whether its particular use of racial classifications is necessary and narrowly tailored to those goals.
Yet what will matter now is whether this panel will have the last say. The Fifth Circuit could grant en banc review or the United States Supreme Court will grant certiorari and take yet another look at affirmative action.
Monday, July 14, 2014
Seventh Circuit Finds Indiana's Clergy-Only Marriage Solemnization Statute Violates the First Amendment
In its 11 page opinion today in Center for Inquiry v. Marion Circuit Court Clerk, a panel of the Seventh Circuit has held Indiana Code §31-11-6-1 violates the First Amendment. The provision specifies who can solemnize a marriage and includes "religious officials designated by religious groups but omits equivalent officials of secular groups such as humanist societies." The plaintiffs, a humanist group and a leader of the group deemed a "secular celebrant," were not allowed to solemnize a marriage unless they obtained clergy credentials or "called themselves a religion."
Judge Easterbrook, writing for the unanimous panel, stated that it is unconstitutional to make distinctions between "religious and secular beliefs that hold the same place in adherents’ lives," citing the well known conscientous objector cases of Welsh and Seeger, as well as Torasco v. Watkins, and the Seventh Circuit precedent regarding accommodations for atheists in prison. There is not, Easterbrook wrote, an "ability to favor religions over non-‐‑theistic groups that have moral stances that are equivalent to theistic ones except for non-‐‑belief in God or unwillingness to call themselves religions."
As for Indiana's argument that the humanists were not actually being excluded from solemnizing marriages under the statute, the court had this to say:
Adherents to faiths with clergy can be married in two steps: first they obtain a license, Ind. Code §31-11-4-1, and then they have the marriage solemnized by a priest or equivalent person in the list in §31-11-6-1. (Plaintiffs do not challenge the licensure statute, because religion is irrelevant to that procedure.) Humanists could achieve the same result in three steps: first get a license, then have a humanist celebrant perform a public ceremony appropriate to their beliefs, and finally have a clerk of court or similar functionary solemnize the marriage. That’s true enough—but it just restates the discrimination of which plaintiffs complain. Lutherans can solemnize their marriage in public ceremonies conducted by people who share their fundamental beliefs; humanists can’t. Humanists’ ability to carry out a sham ceremony, with the real business done in a back office, does not address the injury of which plaintiffs complain.
Interestingly, the opinion also had something to say about the equal protection problems of the statutory scheme, noting that the distinctions between religions that have clergy and those that do not as well as "the state’s willingness to recognize marriages performed by hypocrites," violate the Equal Protection Clause:
It is irrational to allow humanists to solemnize marriages if, and only if, they falsely declare that they are a “religion.” It is absurd to give the Church of Satan, whose high priestess avows that her powers derive from having sex with Satan, and the Universal Life Church, which sells credentials to anyone with a credit card, a preferred position over Buddhists, who emphasize love and peace. A marriage solemnized by a self-declared hypocrite would leave a sour taste in the couple’s mouths; like many others, humanists want a ceremony that celebrates their values, not the “values” of people who will say or do whatever it takes to jump through some statutory hoop.
The court found Indiana's reliance on the Supreme Court's most recent Establishment Clause decision, Town of Greece v. Galloway inapposite, easily distinguishing Galloway as not being about the regulation of private conduct as the Indiana solemnization statute was.
The decision could pave the way for other First Amendment challenges to solemnization statutes that provide a special status for religious clergy.
Monday, July 7, 2014
Ninth Circuit Finds DACA Plaintiffs Entitled to Preliminary Injunction to Receive Drivers' Licenses in Arizona
The Ninth Circuit's opinion in Arizona Dream Act Coalition v. Brewer reversed the denial of a preliminary injunction finding that the plaintiffs had a substantial likelihood of success on their equal protection claim.
The plaintiffs challenged an Executive Order by Arizona Governor Jan Brewer that prohibits recipients of the federal program called the “Deferred Action for Childhood Arrivals” (DACA) from obtaining driver’s licenses by using Employment Authorization Documents as proof of their authorized presence in the United States. The Ninth Circuit panel of judges - - - Harry Pregerson, Marsha S. Berzon, and Morgan Christen - - - in an opinion authored by Pregerson held that even under a rational basis standard of equal protection review, there was no legitimate state interest that was rationally related to defendants’ decision to treat DACA recipients disparately from other noncitizens who were permitted to use their Employment Authorization Documents as proof of their authorized presence in the United States when applying for driver’s licenses.
The major rationale proffered by Arizona for its disparate treatment between classes of noncitizens was that "it is rational to accept (c)(9) and (c)(10) Employment Authorization Documents as proof that the holder’s “presence . . . is authorized under federal law,” Ariz. Rev. Stat. Ann. § 28-3153(D), because persons with (c)(9) and (c)(10) documents “[are] on a path to lawful status,” while DACA recipients are not." The court was "unconvinced" that Arizona "defined 'a path to lawful status' in a meaningful wa," reasoning that "noncitizens’ applications for adjustment of status or cancellation of removal are often denied, so the supposed 'path' may lead to a dead end."
But even so, the court - - - in what could be considered a back door preemption argument - - - noted that states, including Arizona, “enjoy no power with respect to the classification of aliens,” citing Plyler v. Doe, "so their attempt to distinguish between these noncitizens on the basis of an immigration classification that has no basis in federal law is not likely to withstand equal protection scrutiny."
The court likewise rejected the other four rationales raised by Arizona:
- that issuing driver’s licenses to DACA recipients might expose the Arizona Department of Transportation to legal liability “for issuing driver’s licenses to 80,000 unauthorized immigrants;”
- that issuing driver’s licenses to DACA recipients might allow DACA recipients to access state and federal benefits to which they are not entitled;
- that the DACA program might be canceled, requiring Arizona to revoke DACA recipients’ driver’s licenses;
- that DACA recipients may have their authorized presence revoked at any time, and thereafter may be quickly removed from the United States, leaving those they may have injured in automobile accidents with no financial recourse.
The district judge had similarly found these rationales were not persuasive, but had denied the preliminary injunction for failure to show sufficient irreparable harm. The Ninth Circuit found there was such harm, faulting the district judge for seeking to "evaluate the severity of the harm to Plaintiffs, rather than simply determining whether the harm to Plaintiffs was irreparable."
The panel split on the viability of the plaintiffs' preemption claim, with Judge Christen concurring separately to contended that plaintiffs' also had a viable preemption claim.
This is an important case for state benefits including licenses that are being denied to DACA receipients, including licenses to practice law.
Tuesday, July 1, 2014
In his opinion today in Love v. Beshear, Judge John Heyburn held that the Kentucky provisions prohibiting same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment, but stayed the issuance of an injunction pending a resolution by the Sixth Circuit.
Recall that in February, Judge Heyburn ruled in Bourke v. Beshear that Kentucky's statutory and state constitutional provisions defining marriage as limited to one man and one woman violate the Fourteenth Amendment's Equal Protection Clause when applied to same-sex spouses married in another state.
Today's opinion considers those same constitutional and statutory provisions - - - KY. CONST. § 233A; KY. REV. STAT. ANN. §§ 402.005, .020(1)(d) (West 2014) - - - but in the context of a right to marry under Kentucky law. And, not surprisingly, today's opinion reaches similar conclusions to the earlier case of Bourke v. Beshear.
Judge Heyburn quickly concludes that Baker v. Nelson, 409 U.S. 810 (1972), in which the Supreme Court dismissed “for want of a substantial federal question” a challenge to a Minnesota Supreme Court ruling concluding that a same-sex couple did not have the right to marry under the federal Due Process or Equal Protection Clauses, is not precedential. It "is difficult to take seriously the argument that Baker bars Plaintiffs’ challenge," given that the rule for the precedential value of a summary disposition includes the exception "unless doctrinal developments indicate that the Court would rule differently now." As Judge Heyburn states: "Since 1972, a virtual tidal wave of pertinent doctrinal developments has swept across the constitutional landscape."
In considering these doctrinal developments and the applicable standard of scrutiny under Equal Protection doctrine, Judge Heyburn first considers the right at stake. He analyzes whether the right to marry is a fundamental right, but concludes that this precise question is one that "neither the Supreme Court nor the Sixth Circuit has answered." Heyburn declines to engage in "overreaching" on this issue, because the fundamental rights analysis is unnecessary given the analysis regarding sexual orientation classifications.
Judge Heyburn's conclusion on the level of scrutiny to be applied is intermediate scrutiny. Note that this is a departure from his earlier decision in Bourke to apply rational basis. Here, his conclusion - - - admittedly not supported by specific Supreme Court or Sixth Circuit precedent - - is that "homosexual persons constitute a quasi-suspect class based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi- suspect.” He reaches this conclusion by applying four factors: historical discrimination; the ability to contribute to society; immutable defining characteristics; and political powerlessness. Thus, the opinion would ordinarily then apply the intermediate scrutiny standard as articulated by the court: "“substantially related to an important governmental objective."
But Judge Heyburn takes a different path, similar to the one he took in Bourke v. Beshear:
Ultimately, Kentucky’s laws banning same-sex marriage cannot withstand constitutional review regardless of the standard. The Court will demonstrate this by analyzing Plaintiffs’ challenge under rational basis review.
In discussing Kentucky's profferred interests, Judge Heyburn writes that the state's "arguments are not those of serious people." Moreover, he concludes that the means chosen are not rationally related:
Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses. Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have.
Judge Heyburn's last section of the opinion addresses Kentuckians, but in a much more restrained manner than his earlier opinion in Bourke. In Love v. Beshear, Judge Heyburn notes
Since this Court’s Bourke opinion [in February 2014], the legal landscape of same-sex marriage rights across the country has evolved considerably, with eight additional federal district courts and one circuit court invalidating state constitutional provisions and statutes that denied same-sex couples the right to marry.
Heyburn cites the Tenth Circuit's opinion in Kitchen v. Herbert, as well as the district court opinions in Baskin v. Bogan (Indiana); Wolf v. Walker (Wisconsin); Whitewood v. Wolf (Pennsylvania); Geiger v. Kitzhaber (Oregon); Latta v. Otter (Idaho); De Leon v. Perry (Texas); DeBoer v. Snyder (Michigan); and Bostic v. Rainey (Virgina).
He adds that with "this opinion, this Court joins their company."
It remains to be seen, however, whether the Sixth Circuit will also join this increasingly large assembly.
July 1, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)