Constitutional Law Prof Blog

"Racial Entitlement": Professor Scalia, then and now

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fourth Circuit Rejects First Amendment Claims from "Fortune Teller"

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

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

"Justice" Tarot Card circa 15th Century

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

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

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

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

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

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

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

RR
[image via]

 

Sotomayor Focuses on Prosecutor's "Racially Charged" Remark

Writing in a "Statement" accompanying the denial of certiorari in Calhoun v. United States today, Justice Sotomayor (joined by Justice Breyer) sought to "dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark." 

Defendant Calhoun's intent to participate in a drug conspiracy was a central issue and the defendant took the stand.  As Sotomayor explains:

The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prose- cutor to move on. That is when the prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”

For Sotomayor, such prosecutorial argument threatens to violate the equal protection guarentee as well as the defendant's right to an impartial jury. She also castigated the government's original position on appeal that the prosecutor's argument was merely "impolitic," and agreed with a Fifth Circuit Judge who noted that the prosecutor's argument clearly "crossed the line."

But the unusual posture of the case - - - including issues preserved for appeal - - - meant that Sotomayor's Statement was a statement, and not a dissent from the denial of certiorari.  But a strong statement it certainly was:

I hope never to see a case like this again.

RR

Daily Read: Deirdre Bowen on DOMA and Empiricism

Does the Defense of Marriage Act (DOMA) accomplish the purpose of defending opposite-sex marriage?  This question, or at least some version of it, is at the heart of the Supreme Court's consideration of United States v. Windsor, as well as of Hollingsworth v. Perry to the extent that Prop 8 is considered a state DOMA.

In a new article, I Wanna Marry You: An Empirical Analysis of the Irrelevance and Distraction of DOMAs, available in draft on ssrn, LawProf Deirdre Bowen (pictured) argues that the numbers simply don't add up to providing support for the proposition. 

As her central task, Bowen takes as her comparators states with DOMAs, including constitutional amendments and statutes,  and states without DOMAs  and examines their marriage and divorce rates from 1999-2010 to discover whether DOMA correlates with marital stability and strength.   Her analysis "suggests that DOMA states do not fare any better than non-DOMA states in terms of the strengthening  marriage" and in fact, "DOMA states tend to have lower marriage rates, larger declines in the trend towards marriage, and greater divorce rates."

Her empirical query answered, Bowen the contends that not only is DOMA irrelevant, it serves as a distraction from the real threats that certain economic and social policies pose to family stability, especially with regards to children.  Whatever the Court decides, she implies, will not be sufficient to solve the problem of family volatility.

RR

Constitutionalizing Right to Work

Just a month after Michigan passed so-called "right-to-work" legislation--and became the 24th state to prohibit requiring employees to join a union or pay equivalent fees in a union shop--legislatures in Iowa and Virginia both upped the ante and took up provisions to amend their state constitutions to include right to work.  (The Virginia measure now appears dead.)

These aren't the first states to move to constitutionalize right to work.  Arizona has a state constitutional right-to-work provision:

Article XXV Right to Work.  Right to work or employment without membership in labor organization. 

No person shall be denied the opportunity to obtain or retain employment because of non-membership in a labor organization, nor shall the State or any subdivision thereof, or any corporation, individual or association of any kind enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of non-membership in a labor organization.

Florida does, too:

Article I, Section 6: Right to work.

The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization.  The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.  Public employees shall not have the right to strike.

Michigan Governor Rick Snyder (R) is taking a different tack in relation to his state's constitution: he has asked the state supreme court to issue an advisory opinion on the constitutionality of the state's recently enacted right-to-work laws.  The questions: whether the new right-to-work law for the public sector interferes with the Civil Service Commission's constitutional authority, thus nullifying the law as applied to the classified state civil service; and, if so, whether the laws violate equal protection (by treating the classified civil service differently than everyone else).  There's another question: whether the new laws violate state constitutional provisions stating that a bill can't be amended to change its original purpose and that bills have to meet certain procedural requirements (including sitting in each house for at least five days, and read three times).

Snyder's move appears to be designed to short-circuit promised legal actions to halt or delay the implementation of the bills.  Getting a favorable ruling from the state supreme court would allow Snyder to implement the laws immediately.

SDS

Ban on Women in Combat to be Lifted

Reputable news sources are reporting the Department of Defense will abandon the ban on women serving in combat; CNN has one of the fullest reports.

The official announcement from the Pentagon should be forthcoming on Thursday.

In November, a complaint in Hegar v. Panetta was filed in the Northern District Court of California, arguing that the policy offended the equal protection component of the Fifth Amendment.  More about the case is available from the ACLU.

ConLawProfs (and students) often encounter the gendered combat exclusion in discussions of Rotsker v. Goldberg (1981) in which the Justice Rehnquist's Court upheld male-only registration for the draft finding women were not "similarly situated" to men because women were not eligible for combat.

RR
[image via]

Seventh Circuit Panel Upholds Wisconsin's Act 10

Reversing a federal district judge's holding that portions of Wisconsin's controversial Act 10 regarding public unions, the Seventh Circuit split panel's opinion in Wisconsin Education Association Council v. Walker upheld the constitutionality of the act. 

Recall that the federal district judge had held that Act 10's requirement of annual recertification of general employees unions violated equal protection guarantees and Act 10's prohibition of dues withholding for general employees violated the first amendment.

Union members protesting in Wisconsin, 2011

The Seventh Circuit majority emphasized that the Act 10's "speaker-based distinctions are permissible when the state subsidizes speech. Nothing in the Constitution requires the government to subsidize all speech equally." 

Moreover, the Seventh Circuit majority found that Act 10 was viewpoint neutral, even as it admitted that

the Unions do offer some evidence of viewpoint discrimination in the words of then-Senate Majority Leader Scott Fitzgerald suggesting Act 10, by limiting unions’ fundraising capacity, would make it more difficult for President Obama to carry Wisconsin in the 2012 presidential election. While Senator Fitzgerald’s statement may not reflect the highest of intentions, his sentiments do not invalidate an otherwise constitutional, viewpoint neutral law.

On the Equal Protection claim, the panel majority applied rational basis review, in which "the law is presumed constitutional, and we impose a weighty burden on the Unions—they must “negative every . . . basis which might support” the law because we will uphold it “if there is any reasonably conceivable state of facts” supporting the classification."  The panel rejected the argument that heightened rational basis attributable to animus should apply: "unfortunate as it may be, political favoritism is a frequent aspect of legislative action."

Judge David Hamilton dissented from the majority's decision upholding Wisconsin’s selective prohibition on payroll deductions for dues for some public employee unions but not others on the basis of the First Amendment.   In his lengthy dissent,  Judge Hamilton differs on the central point of viewpoint neutrality, noting that while "on its face, Wisconsin’s Act 10 seems viewpoint-neutral: public safety unions can have dues withheld from paychecks, while other public employee unions cannot."  But he quickly observes: "Facial neutrality, however, is not the end of the matter."

Hamilton agreed with the district judge and credited the unions' arguments that Act 10 was a

pretext for viewpoint (here, political) discrimination. The first is the close correlation between various unions’ political endorsements in the 2010 Wisconsin governor’s race and their ability to continue payroll deductions. The second is the flimsiness of the State’s proffered rationales for drawing the line as it did between public safety and general employees and for barring payroll deductions of union dues for all but public safety employees. The third is the overtly partisan political explanation for the Act that was offered in the legislative debate.

While there are some minor disagreements on doctrine between the majority and dissenting opinions, for the most part they are in accord.  Where they differ is in their essential understanding of whether the facts satisfy the requirement of viewpoint neutrality.  Dissenting Judge Hamilton seems to have the better opinion in this regard; the majority opinion too often seems poised to conclude their is viewpoint discrimination and then retreats without explanation.

Perhaps the Seventh Circuit will proceed with en banc review.

RR

 

Third Circuit: No Right to Access Polling Places

A three-juge panel of the Third Circuit ruled in PG Publishing Co. v. Aichele that a newspaper had no First Amendment right to access polling places.  The lengthy and careful opinion affirms a lower court ruling and creates a split between the Third and Sixth Circuits on the proper framework for analysis of this kind of claim, dealing with the right of access to the polling place: apply the experience-and-logic test from right-to-access jurisprudence (as the Third Circuit would have it); or apply strict scrutiny, apparently based on free speech forum analysis (as the Sixth Circuit would have it)?

The case arose out of attempts by PG's reporters to gain access to polling places in Allegheny and Beaver Counties, Pennsylvania, in order to report on that state's implementation of its voter ID law in the last election.  But state law bans all but election officers, clerks, machine inspectors, overseers, watchers, voters, those giving assistance to voters, and police officers from the polling place during elections.  After PG reporters were denied access in those two counties, PG sued, arguing that the ban violated its free speech and equal protection rights.  (Equal protection, because it claimed that other counties allowed access to reporters from other papers, and that Allegheny and Beaver counties previously allowed access to PG reporters.)

The Third Circuit rejected the claims.  The court ruled that free speech analysis didn't even apply (because there was no speech).  (The court nevertheless made clear that a polling place is a non-public forum.)  Instead, the court looked to right-to-access, or "right to gather news," jurisprudence--a right, like free speech, that the media enjoy only on par with the public generally.  Thus the court applied the Richmond Newspapers (or the "experience and logic") test, "balanc[ing] the interests of the People in observing and monitoring the functions of their government against the government's interest and/or long-standing historical practice of keeping certain information from public scrutiny.  If a right of access exists, any restraint on that right is then evaluated under strict scrutiny."  Op. at 25.  (The court reviewed its own opinions applying the experience-and-logic test to any traditionally open government proceeding, not just judicial proceedings, and concluded that it applies to polling places.)

Applying the test, the court first reviewed the history of voting (the "experience" prong) and wrote that "the historical record is insufficient to establish a presumption of openness in the context of the voting process itself."  Op. at 38.  Next, on the "logic" prong, the court compared the benefits of openness (preventing election fraud, preventing voter intimidation, and especially here checking and reporting on the implementation of voter ID) to the dangers (overcrowded polling places, revealing private information of voters) and ruled that "the 'logic' prong of this inquiry disfavors finding a constitutionally protected right of access to the voting process."  Op. at 43.  The net result: "both prongs of the "experience and logic" test militate against finding a right of access in this case."  Id.

In applying the experience-and-logic test, the court rejected the approach of the Sixth Circuit in Beacon Journal Publishing Co., Inc. v. Blackwell, 389 F.3d 683 (6th Cir. 2004).  The Sixth Circuit in Beacon Journal applied strict scrutiny, not experience-and-logic balancing, to a similar claim and overturned Ohio's restriction on access.  The Third Circuit said that Beacon Journal erroneously applied speech principles--and public forum principles, at that--and thus deviated from the clear approach of the Supreme Court in cases like this.  It thus declined to follow Beacon Journal.

As to equal protection, the court rejected PG's three theories--a class-of-one theory, a selective enforcement theory, and an inconsistent application theory--all because PG failed to show any intention discrimination against its reporters, or that the state treated PG's reporters any differently than reporters from any other paper.

SDS

ConLaw at AALS: Looking Towards Fisher

If you're at AALS, don't miss today's double panel on affirmative action in education, starting at 2pm:

This joint program will explore issues of equal educational opportunity. The first panel will consider these issues in the context of elementary and secondary education, with emphasis on school financing. The second will deal primarily with the constitutionality of racial affirmative action in higher education admissions. Both panels will consider the implications of the Court’s grant of review in Fisher v. University of Texas, involving an undergraduate affirmative action admissions program.

In 1973, the Court held in Rodriguez that there was no fundamental right to education. Plaintiffs alleged that substantial disparities in educational opportunity violated the Constitution. The Court found the Texas elementary and secondary school finance system constitutional because it was rationally related to advancing local control of education; the Court hesitated to second guess the Texas legislature in light of federalism principles and concerns about judicial competency to deal with school finance systems. 

 The first panel will focus on the legacy of Rodriguez and how the law can address educational disparities in elementary and secondary education. Panelists also will discuss the effect of limits on use of race-conscious programs under the 2007 Parents Involved decision, and will consider the implications of the grant of review in Fisher.In 1978, a deeply fractured Court decided Bakke. Only one paragraph of Justice Powell’s pivotal opinion was joined by four other justices; it held that a “properly devised admissions program” that took race into account could be constitutional. He envisioned a flexible, individualized program that would provide the educational benefits of a diverse class. In 2003, the Court in Grutter held that diversity could be a compelling interest; the Court upheld Michigan Law School’s program, even as it held (in Gratz) that Michigan’s more mechanical undergraduate affirmative action program violated equal protectio

The second panel will consider the legacy of Bakke and discuss how the Court should decide Fisher. Is racial diversity a compelling interest? What is the role of empirical evidence? What do the empirical studies tell us about the benefits or harms of affirmative action? Diversity may provide better learning outcomes for all students (or for certain students), better preparation of students for a diverse world, and better social results due to formation of a diverse group of leaders. Which potential benefits “count”? How can a program be narrowly tailored to advance the interest in educational diversity?

Speakers

Speaker: Kevin D. Brown, Indiana University Maurer School of Law
Speaker: Erwin Chemerinsky, University of California, Irvine School of Law
Speaker from a Call for Papers: Paul Horwitz, The University of Alabama School of Law
Speaker: Jennifer Mason McAward, Notre Dame Law School
Speaker from a Call for Papers: Eboni S. Nelson, University of South Carolina School of Law
Speaker: Angela I. Onwuachi-Willig, University of Iowa College of Law
Speaker: Michael A. Rebell, Columbia University School of Law
Co-Moderator: Kimberly Jenkins Robinson, The University of Richmond School of Law
Speaker: Richard H. Sander, University of California, Los Angeles School of Law
Co-Moderator: Mark S. Scarberry, Pepperdine University School of Law

More information here.

RR

Daily Read: SCOTUS Website on DOMA and Proposition 8

The Supreme Court of the United States has updated its website to include a page entitled "Filings in the Defense of Marriage Act  and California’s Proposition 8 cases,"  or   "DOMPRP8."

It promises to be helpful, with "live links to the orders, case filings, and other information pertaining to the Defense of Marriage Act and California’s Proposition 8 cases."   

The disclaimer is worth a look:

Disclaimer: We have provided a link to this site because it has information that may be of interest to our users.  The Supreme Court of the United States does not necessarily endorse the views expressed or the facts presented on this site.

RR

150th Anniversary of the Emancipation Proclamation

Today marks the 150th anniversary of the Emancipation Proclamation, signed by President Abraham Lincoln on January 1, 1863. 

Here's the transcription from the National Archives:

The Emancipation Proclamation

Whereas, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty-two, a proclamation was issued by the President of the United States, containing, among other things, the following, to wit:

"That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.

"That the Executive will, on the first day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be, in good faith, represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such State shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States."

Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do publicly proclaimed for the full period of one hundred days, from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit:

Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth[)], and which excepted parts, are for the present, left precisely as if this proclamation were not issued.

And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.

And I further declare and make known, that such persons of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.

And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind, and the gracious favor of Almighty God.

In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.

Done at the City of Washington, this first day of January, in the year of our Lord one thousand eight hundred and sixty three, and of the Independence of the United States of America the eighty-seventh.

By the President: ABRAHAM LINCOLN

WILLIAM H. SEWARD, Secretary of State.

 RR
[pages of proclamation via]

Sixth Circuit: No First Amendment Right for University Employee's Op-Ed

In its opinion yesterday in Dixon v. University of Toledo, the Sixth Circuit addressed what it labeled a "narrow inquiry," articulating the issue as "whether the speech of a high-level Human Resources official who writes publicly against the very policies that her government employer charges her with creating, promoting, and enforcing" is protected speech under the First Amendment.

The panel held that it was not.

Dixon was the "interim Associate Vice President for Human Resources at the University of Toledo"  when she wrote and published what the Sixth Circuit opinion describes as "an op-ed column in the Toledo Free Press rebuking comparisons drawn between the civil-rights and gay-rights movements."  Crystal Dixon's op-ed, Gay rights and wrongs: another perspective, published in the Toledo Free Press in 2008 (available here), did not identify her position although it did address some university policies.  It also approvingly discussed the ex-gay movement, quoted Biblical passages, and provided comparative economic data for gay men and lesbians - - - none of which the Sixth Circuit mentioned, but probably contributed to the University's decision to terminate her due to the "public position" she took that "in direct contradiction to University policies and procedures as well as the Core Values of the Strategic Plan which is mission critical."

The Sixth Circuit affirmed the district judge's grant of summary judgment to the university. 

There was no question that the speech was on a matter of public concern, but a question whether her speech was protected under the Pickering balancing test, Pickering v. Bd. of Educ., 391 U.S. 563 (1968).  The Sixth Circuit precedent included a presumption that “where a confidential or policymaking public employee is discharged on the basis of speech related to his political or policy views, the Pickering balance favors the government as a matter of law.”

In its relatively brief opinion, the Sixth Circuit panel had little difficulty agreeing with the district judge that Dixon had substantial discretionary authority in her position and that her public statements conflicted with the university position's to extend civil rights protections to LGBT students and employees.

Dixon also raised an equal protection argument that other employees who made pro-LGBT statements and in one case attributing anti-LGBT sentiments to "religious bigotry" were not similarly terminated.  The court held that Dixon did not demonstrate that these employees were "similarly situated."

Indeed, it seems that the case turns on Dixon's highly placed position in Human Resources.

RR

Nevada District Judge Rejects Challenge to Same-Sex Marriage Exclusion

In an 41 page opinion and order in Sevick v. Sandoval, United States District Judge Robert Jones has rejected an equal protection challenge to Nevada's statutory scheme disallowing same-sex marriage. 

The judge relied upon Baker v. Nelson, 409 U.S. 810 (1972), in which the United States Supreme Court summarily dismissed an equal protection challenge to the Minnesota statutory marital scheme's exclusion of same-sex couples.  While stating that the "present challenge is in the main a garden-variety equal protection challenge precluded by Baker," the judge was undoubtedly aware of Baker's problematic status (a case to be relegated to the dustbin of precedent, perhaps), and provided a full analysis, "so that the Court of Appeals need not remand for further proceedings should it rule that Baker does not control or does not control as broadly as the Court finds."

The judge's well-structured analysis begins with a discussion of the classification, considering the notion that the Nevada scheme makes no classification at all, as well as the notion that the scheme makes a gender classification, but settling for the widely accepted principle that the scheme makes a sexual orientation classification.

In determining the level of scrutiny to be applied, Judge Jones decides in favor of rational basis, noting his disagreement with the Second Circuit in Windsor involving DOMA.  Supporting this conclusion, Judge Jones highlights the factor of political powerlessless and its relationship with the judicial role in a democracy.  For example, Jones writes that "Any minority group can reasonably argue that its political power is less than it might be were the group either not a minority or more popular. That is simply an inherent aspect of democracy."   Additionally, "Gross movements by the judiciary with respect to democratic processes can cause an awkward unbalancing of powers in a Madisonian constitutional democracy."

Moreover, Judge Jones rejects the heightened rational basis of Romer v. Evans and the Ninth Circuit precedent of Perry v. Brown, involving California's Proposition 8, because there is no animus in the Nevada scheme:

Because there has never been a right to same-sex marriage in Nevada, Romer and Perry are inapplicable here as to NRS section 122.020. That section of the NRS removed no preexisting right and effected no change whatsoever to the legal status of homosexuals when adopted by the Nevada Territorial Legislature in 1861. See Nev. Comp. Laws § 196 § 2, at 65 (1861–1873).

On this lowest standard of rational basis, the challenger must negate every conceivable basis - - - an exceedingly, if not impossible task, and Judge Jones not surprisingly finds that the challengers fail to meet their heavy burden.  The "protection of the traditional basis for marriage," is a legitimate one for Judge Jones, and the exclusion of same-sex couples is rationally related to that interest.  This is true even though Nevada has provided for a domestic partnership scheme for same-sex couples.

As the United States Supreme Court considers whether or not to decide the issue of same-sex marriage, either in the Proposition 8 posture of Perry v. Brown or one of the DOMA postures such as the Second Circuit case or First Circuit case - - - all of which invalidated bans on same-sex marriage - - - Judge Jones' opinion demonstrates that the constitutional issue of same-sex marriage remains a contested one, even in a state with otherwise permissive marital regulations. 

RR
[image "Little white chapel" in Las Vegas, Nevada, via]

Daily Read: Thirteenth Amendment Scholars Supporting Matthew Shepard & James Byrd, Jr. Hate Crimes Act

Did Congress have power pursuant to the Thirteenth Amendment to pass the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009? 

 

President Barack Obama greets Louvon Harris, left, Betty Byrd Boatner, right, both sisters of James Byrd, Jr., and Judy Shepard, center, mother of Matthew Shepard, following his remarks at a reception commemorating the enactment of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act in the East Room of the White House, Oct. 28, 2009. (Official White House Photo by Pete Souza)

The question of the Act's constitutionality is before the Tenth Circuit in an appeal arising from the first prosecution under the Act.  In Hatch v. United States, the defendant challenges 18 U.S.C. § 249(a)(1), which provides:

 

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—

There seems to be little dispute that the three defendants admitted actions against the Native American victim, including branding the victim with a swatstika, fit within the terms of the statute.   But did the statute exceed Congress' power pursuant to the Thirteenth Amendment, or does the statute violate equal protection as guarenteed through the Fifth Amendment?

On the Thirteenth Amendment issue, ConLawProfs William M. Carter, Jr., Dawinder S. Sidhu, Alexander Tsesis, and Rebecca E. Zietlow, have filed an amicus brief, available on ssrn, argue that the Thirteenth Amendment's enforcement clause gives Congress broad powers.  They contend that the hate crime section should be analyzed under a defential rational basis standard, both because of its provenance in the Thirteenth Amendment and, perhaps most interestingly,  because the statute does not make a racial classification.

This is a terrific read of engaged scholarship as well as a providing a great grounding for a class exercise or student project.

RR

Court Reignites Health Care Reform Challenge

The Supreme Court today reopened one of the cases challenging the federal Affordable Care Act and sent it back for further proceedings at the Fourth Circuit.  The move means that the lower court, and possibly the Supreme Court, will have another crack at certain issues that the Supreme Court dodged this summer in its ruling in NFIB v. Sebelius.

Recall that the Fourth Circuit rejected a challenge to the ACA by several individuals and Liberty University in September 2011, holding that the Anti-Injunction Act barred the claim.  The Supreme Court declined to review that case, Liberty University v. Geithner.  But today the Court reopened the case, vacated the Fourth Circuit ruling, and sent the case back for further proceedings in light of the Court's ruling in NFIB.

The plaintiffs in the case originally challenged the universal coverage provision (the so-called "individual mandate," requiring individuals to acquire health insurance or to pay a tax penalty) and the employer mandate (requiring employers with more than 50 employees to provide health insurance coverage for their employees), arguing that they exceeded Congress's taxing and commerce powers and violated the Tenth Amendment, Article I, Section 9's prohibition against unapportioned capitation or direct taxes (the Direct Tax Clause), and the Religion Clauses and the Religious Freedom Restoration Act (among others).  (As to the Religion Clauses, the plaintiffs argued that the requirements would cause them to support insurance companies that paid for abortions, a practice that they claimed ran against their religions.) 

The district court ruled against the plaintiffs on all counts and dismissed the case.  The Fourth Circuit dismissed the case under the AIA and didn't reach the merits. 

The Supreme Court ruled in NFIB that the AIA did not bar the Court from ruling on the tax question, that Congress validly enacted the universal coverage provision under its Article I, Section 8 power "to lay and collect Taxes," and that it didn't violate the Direct Tax Clause.  Thus after NFIB these issues appear to remain open on remand:

• Whether the mandates violate the Religion Clauses or the RFRA;
• Whether the employer mandate violates the taxing authority or the Direct Tax Clause;
• Whether the mandates violate equal protection;
• Whether the mandate violates free speech and associational rights.

As to the Religion Clauses, the district court ruled that the ACA's religious exemptions to universal coverage were permissible accommodations (and thus didn't violate the Establishment Clause) and that the ACA didn't require the plaintiffs to pay for abortions (and thus didn't violate the Free Exercise Clause or the RFRA).

As to the employer mandate: It's hard to see how the Supreme Court's tax analysis of the individual mandate in NFIB wouldn't apply with equal force to the employer mandate.

If the district court was right on the First Amendment and equal protection claims (as it seems), and if the Supreme Court's tax analysis applies with equal force to the employer mandate, this case doesn't seem to have much of a future.

But then again, that's what many of us said about NFIB.

SDS

Perea on Recognizing, Teaching the Pro-Slavery Constitution

Prof. Juan Perea (Loyola Chicago and visiting Lee Chair at John Marshall) argues in his excellent piece Race and Constitutional Law Casebooks: Recognizing the Proslavery Constitution that con law profs, unlike historians, do a bad job with slavery.  In particular, he says that law profs do a bad job even recognizing the pro-slavery origins of our Constitution, much less teaching them.  He says that this neglect and dishonesty about so central a part of our Constitution prevents us all from critically examining how the pro-slavery nature of our Constitution influences contemporary doctrine and debates.  And, importantly, he tells us what we can do about it.

Perea's piece, published in the Michigan Law Review, starts as a book review of George William Van Cleve's A Slaveholders' Union: Slavery, Politics, and the Constitution in the Early American Republic.  But Perea moves quickly into an examination of how--or even whether--contemporary constitutional law instruction addresses anything at all about slavery--the issue that Van Cleve shows played a defining role in our constitutional beginnings.  Perea surveys some of the top casebooks and concludes that they barely touch the issue.  Even when they do, they pay only scant attention to it, apparently assuming either that it wasn't really that important to the framing and ratification, or that that the Reconstruction Amendments solved the problem.  This lack of attention to so critical an issue is particularly vexing in a field that otherwise takes history and tradition so seriously.

Perea argues that the pro-slavery Constitution is reflected in structural racism, Court-crafted doctrine (perhaps most especially the Court's demand for proof of intent to show an equal protection violation, although there are dozens of doctrinal examples), the intentional use of race-neutral language in the law to produce a racially targeted harm, and the consistent sacrifice of black equality rights for the sake of political union.  We may teach these things, and we may even teach them critically.  But we mostly don't teach them as what they are: outgrowths of a pro-slavery foundational document.

Perea has some ideas about what to do about this.  In short: say more.  Casebooks should devote more attention to the pro-slavery Constitution, and to tie it to contemporary doctrine.  Teachers should say more--much more--about it and teach it as part of our history, tradition, and doctrine.  Until the casebooks catch up, Perea offers some suggestions and resources for integrating slavery into their classes.  

The easiest way may just be this: Assign our students Perea's article.

SDS

Challenge to Proposed San Francisco Ordinance Banning Nudity

Proposed Ordinance 120984 banning public nudity, scheduled for vote by the San Francisco Board of Supervisors on November 20, is already the subject of a constitutional challenge filed in federal court.

This pre-enforcement - - - indeed, pre-adoption - - - challenge suffers from a lack of Article III ripeness,  but an adoption of the ordinance and the passage of 30 days for the ordinance to become effective would cure that defect. 

On the merits, the complaint alleges that the proposed ordinance violates the First Amendment and the Equal Protection Clause.  One of the more interesting arguments flows from one of the proposed ordinance's two exceptions: any person under the age of five years, and "any permitted parade, fair, or festival held under a City or other government issued permit." 

The more generalized First Amendment challenge to a law banning nudity is not likely to suceed under the federal constitution.  However, the California constitution could certainly be construed to protect nude expression.  And even more compelling are the political and social arguments presented to the San Francisco Board of Supervisors that focus on San Francisco's identity as a haven for free expression, including nudity. 

Reports from SF weekly here and here.

RR
[image via]

En Banc Sixth Circuit Finds Michigan's Anti-Affirmative Action Proposal 2 Unconstitutional

In its opinion today in Coalition to Defend Affirmative Action v. Regents of the University of Michigan, the en banc Sixth Circuit has declared Michigan's anti-affirmative action constitutional amendment, passed in 2006 as a ballot initiative Proposal 2, unconstitutional. 

The majority opinion, written by Judge Cole, and joined in full by seven other judges, and in part by others, applies the "political-process" doctrine of Equal Protection Clause.  Disagreeing, there is a splintering of five other mostly dissenting opinions, joined by various other judges, with two judges not participating.

The opinion begins with a concrete illustration of the "political process" doctrine:

A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.

The court specifically discounted the Supreme Court's decisions in Grutter and Gratz - - - which arose in Michigan and prompted Proposal 2 - - - by stating it was "neither required nor inclined to weigh in on the constitutional status or relative merits of race-conscious admissions policies as such."   Indeed, the majority charges the dissenters with seeking to take a "second bite" at Grutter. Instead, the constitutional challenge involved a "state amendment that alters the process by which supporters of permissible race-conscious admissions policies may seek to enact those policies." 

With this interpretation, the court looked to Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969), cases that

expounded the rule that an enactment deprives minority groups of the equal protection of the laws when it: (1) has a racial focus, targeting a policy or program that “inures primarily to the benefit of the minority”; and (2) reallocates political power or reorders the decisionmaking process in a way that places special burdens on a minority group’s ability to achieve its goals through that process.

The court then applied the rule to conclude that Proposal 2 targets a program that “inures primarily to the benefit of the minority” and reorders the political process in Michigan in a way that places special burdens on racial minorities."

Interestingly, the en banc majority rejected any distinction based upon the race benefited or burdened:

The Attorney General and the dissenters assert that Hunter and Seattle are inapplicable to Proposal 2 because those cases only govern enactments that burden racial minorities’ ability to obtain protection from discrimination through the political process, whereas Proposal 2 burdens racial minorities’ ability to obtain preferential treatment. At bottom, this is an argument that an enactment violates the Equal Protection Clause under Hunter and Seattle only if the political process is distorted to burden legislation providing constitutionally-mandated protections, such as anti-discrimination laws. Under this theory, a state may require racial minorities to endure a more burdensome process than all other citizens when seeking to enact policies that are in their favor if  those policies are constitutionally permissible but not constitutionally required. This effort to drive a wedge between the political-process rights afforded when seeking anti- discrimination legislation and so-called preferential treatment is fundamentally at odds with Seattle.

The only way to find the Hunter/Seattle doctrine inapplicable to the enactment of preferential treatment is to adopt a strained reading that ignores the preferential nature of the legislation at issue in Seattle, and inaccurately recast it as anti-discrimination legislation.

None of the opinions mention the recently argued case of Fisher v. Texas.  If the United States Supreme Court were to take a very broad approach and declare that all racial affirmative action policies in education were per se unconstitutional, the rationale of today's opinion in Coalition to Defend Affirmative Action would be seriously undermined.

RR
[image: "Women's Studies Turns 40" from the University of Michigan, via]

Daily Read: Non-Citizens and Constitutional Rights

The constitutional "rights" of noncitizens are now less likely to be successfully argued under equal protection theories than under federalism (preemption) or administrative agency power issues according to Geoffrey Heeren in his article Persons Who Are Not The People: The Changing Rights of Immigrants in The United States, forthcoming in 44 Colum. Hum. Rts. L. Rev. and available in draft on ssrn.

Heeren reminds us that in the 1886 case of Yick Wo v. Hopkins, the United States Supreme Court recognized the Fourteenth Amendment equal protection claims by noncitizens, including immigrants within its definition of "we the people."  Yet, although such early Supreme Court cases upheld immigrants’ right to work in the face of state restrictions, relying heavily on the logic and rhetoric of natural rights, in more recent cases such as Arizona v. United States these equality norms are missing.  Heeren argues this is a loss given the importance of "rights."  He concludes:

In this climate, perhaps the best that can be hoped is for immigrants to invoke individual rights proxies like federalism or agency skepticism. But history, even U.S. legal history, is full of sudden change. The contemporary Supreme Court may prioritize structural rights based on federalism over individual rights and administrative law claims over constitutional ones. But these currently prevailing doctrines evolved from a very different state of affairs—one in which immigrants succeeded to a remarkable extent in pressing claims as equals.

Heeren's article is worth considering not only in light of his excellent discussion of various constitutional doctrines but also in terms of the political consequences of "rights" for noncitizens.

RR
[image via]

Complaint Sufficiently Alleges Constitutional Violations Against University Officials

A three-judge panel of the Ninth Circuit ruled in OSU Student Alliance v. Ray that a conservative student newspaper at Oregon State sufficiently alleged constitutional claims against university officials after they removed the newspaper's distribution bins from around campus and limited the locations where the newspaper could replace the bins.  The ruling reverses a lower court ruling dismissing the case, allows the plaintiffs to amend their complaint as to certain defendants, and means that the case will move forward on the merits.

The case arose when Oregon State officials removed distribution bins of the conservative Liberty newspaper, published by the Student Alliance.  Officials did not similarly remove distribution bins of the official student newspaper, the Daily Barometer, or outside newspapers (like USAToday).  Officials claimed that they were enforcing an unwritten policy prescribing the acceptable campus locations for outside newspaper distribution bins.  Officials treated the Liberty as an outside newspaper, even though it has a student editorial staff, because its funding came almost exclusively from outside sources--donations and advertising.  In contrast, the Daily Barometer received university funding through the student government.  Officials said that this distinction explained why they treated Liberty bins differently than Daily Barometer bins, but it obviously didn't explain why it treated Liberty bins differently than USAToday bins. 

The newspaper sued under 42 U.S.C. Sec. 1983, arguing that four university officials--the president, a vice-president, the vice-provost for student affairs, and the director of facilities services--violated their rights to free speech, due process, and equal protection.  The district court dismissed the claims for injunctive and declaratory relief after the school changed its policy; and it dismissed the claims for damages because the plaintiffs didn't plead that any of the four defendants participated in the confiscation of the newsbins.

The Ninth Circuit reversed.  It ruled that the plaintiffs sufficiently pleaded that the certain defendants "caused" a "deprivation of federal right" and remanded to allow the plaintiffs to replead as to others.

As to the deprivation, the court said that the OSU campus is "at least a designated public forum," that the unwritten "policy" left university officials with unbridled discretion (alone enough to doom the policy), and that any standard (identified only post hoc) that distinguished between on-campus and outside publications bore no relationship to the school's interest in reducing clutter around campus.  "OSU's standardless policy cannot qualify as a valid time, place, and manner restriction."  Op. at 12778.  And the plaintiffs correctly pleaded that it was viewpoint discrimination.

The court also said that the plaintiffs sufficiently pleaded an equal protection violation, because they pleaded that the university treated them differently than a similarly situated newspaper in a way that trenched on a fundamental right (free speech).  It also said that the plaintiffs adequately pleaded that the defendants removed their bins without prior notice in violation of due process.

As to causation, the court recognized that "[s]ome of the plaintiffs' claims raise thorny questions under Iqbal."  Claims against the director of facilities management were easiest, because that official was directly involved in the confiscation and relocation policy.  But the court said that claims against the president and vice-president (the director's supervisors) had to show the requisite intent under Iqbal.  The court said that the plaintiffs sufficiently pleaded that the president and vice-president knew of the director's violations of free speech--that knowledge (and not specific intent) is the relevant state of mind required for a free speech violation.  (Recall that the Supreme Court required the plaintiffs to plead specific intent for equal protection and free exercise violations in Iqbal.)

The court wrote that the complaint sufficiently tied the director of facilities to the due process violation--that he was responsible for the unwritten bin policy, and that the confiscation happened pursuant to the policy--but that it didn't sufficiently tie the president and vice-president to the policy. 

As to the vice-provost, the court said that the complaint didn't sufficiently allege that he knew of the free speech violations and that he wasn't sufficiently tied to the due process violation. 

The court remanded the case to allow the plaintiffs to amend their complaint to bring in the president and the vice-president on the due process claims and the vice-provost on any claims.

Judge Ikuta dissented in part, arguing that the majority's approach as to the president and vice-president "resurrects the very kind of supervisory liability that Iqbal interred."

SDS