Thursday, July 2, 2015

Obergefell, Federalism, and Religion: Constitutional Issues Raised in Alabama and Texas

After the United States Supreme Court's opinion in Obergefell v. Hodges on June 26 declaring that states are required by the Fourteenth Amendment to issue same-sex marriage licenses, a few state officials have not only voiced objections to the decision, but have voiced resistance to complying with the Court's declaration. 

The situations in Alabama and Texas have been the most contentious.


ALABAMA:     Recall that earlier this year when federal District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage, the reaction of  Alabama Supreme Court's controversial Chief Judge Roy Moore was an unusual letter to the Governor objecting to the federal judge's opinion on the basis that federal courts have no power in this Biblical area.  This was followed by an opinion of the Alabama Supreme Court ordering judges not to issue same-sex marriage licenses. The Eleventh Circuit, and then the United States Supreme Court denied a stay of the district judge's opinion.

When the Court took certiorari in Obergefell, however, Judge Granade stayed her order.

However, after the Court decided Obergefell, the Alabama Supreme Court's  "corrected order" stated that because the US Supreme Court rules allow parties 25 days to file a petition for rehearing, the parties in the case - - - including two conservative Alabama organizations - - - were invited to submit briefs on the effect of Obergefell.  Federal District Judge Callie Granade issued a one-page Order on July 1, referenced her earlier stay and then stated:

The United States Supreme Court issued its ruling on June 26, 2015. Obergefell v. Hodges, 576 U.S. ____ (2015). Accordingly, by the language set forth in the [previous] order, the preliminary injunction is now in effect and binding on all members of the Defendant Class.

Thus, the officials of Alabama are subject to a direct order by a federal judge.

 TEXAS:   The Attorney General of Texas, Ken Paxton, who is reportedly facing criminal charges on unrelated matters, issued a six page opinion letter a few days after Obergefell which stressed the individual religious rights of county clerks and their employees, as well as justices of the peace and clergy, regarding their participation in same-sex marriages.  Paxton's opinion was widely reported and concluded that county clerks retain religious freedoms that "may allow" accommodations depending "on the particular facts of each case."  Paxton relied on the First Amendment as well as Texas's Religious Freedom Restoration Act (RFRA), essentially similar to the federal RFRA at issue in the Court's decision in Hobby Lobby. This is not unique:  the possibility of claims by individual public employees in clerk's offices was also raised after New York passed its Marriage Equality Act in 2011 and as that act made clear - - - as is generally understood - - - that religious officers have complete discretion in agreeing or refusing to solemnize marriages. 

The Fifth Circuit issued a very brief opinion on July 1, noting that "both sides now agree" that the  the injunction appealed from, originally issued in early 2014 by federal district judge Orlando Garcia in DeLeon v. Perry [now Abbott],  "is correct in light of Obergefell," the Fifth Circuit ruled that the preliminary injunction is affirmed. 

The Fifth Circuit's opinion makes clear - - - seemingly with state agreement - - - that Texas is bound by Obergefell, but does not mention individual religious accommodations. 

In both the Alabama and Texas situations, there are echoes of resistance to the Supreme Court's opinion in Brown v. Board of Education; The Supremacy Clause and the Court's opinion in Cooper v. Aaron seem to answer the question of whether state officials simply may disagree with the Court's interpretation of the Constitution.  This is true despite the dissenting opinions in Obergefell itself which argued that the Court should leave the resolution of same-sex marriage to individual states.  The question of religious accommodations may be a closer one, but what seems clear is that if there is indeed an individual right to be accommodated - - - again, that itself is unclear - - - it cannot be a right of a government entity.  While Hobby Lobby may have held that corporations have religious freedoms, it is hard to conceive of government entities having free exercise rights in a manner that does not violate the Establishment Clause.

July 2, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0)

Monday, June 29, 2015

Court Grants Certiorari in Fisher v. UT Austin (Redux)

The Court has granted certiorari in Fisher v. University of Texas at Austin, which means the affirmative action in university admissions will be making its second trip to the United States Supreme Court.  Justice Kagan is recused.

Large_university-of-texas_seal_rgb(199-91-18)Recall that in June 2013, 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.

On remand, recall that by a divided opinion, a panel of the Fifth Circuit held that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.

The Court's grant of certiorari might mean that the Court - - - or at least 4 of its members - - - disagrees with the Fifth Circuit's application of narrowly tailored.  Justice Kagan's recusal could be an important factor in any decision.

Fisher graduated from another university in 2012, but the courts have rejected arguments regarding mootness.


June 29, 2015 in Affirmative Action, Courts and Judging, Equal Protection, Federalism, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Friday, June 26, 2015

Court Decides Fourteenth Amendment Requires States to License Same-Sex Marriage

In a closely-divided opinion, with the majority written by Justice Kennedy, the Court has decided that the Fourteenth Amendment requires states to license same-sex marriages in Obergefell v. Hodges.   The opinion rests on both due process and equal protection grounds.  The majority opinion joined by Ginsburg, Breyer, Sotomayor, and Kagan - - - there are no concurring opinions - - - is less than 30 pages, plus 2 appendices including the citations of same-sex marriage opinions.  Each of the four dissenting Justices - - - Chief Justice Roberts and Justices Scalia, Thomas, and Alito - - - wrote a separate dissenting opinion, with some joinders by other Justices. 

The decision that the Fourteenth Amendment requires states to license same-sex marriages renders the second certified question regarding recognition irrelevant, as the discussion during oral arguments made clear.

Recall that the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans.   There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.



[image Donkey Hotey]

On the due process issue, Kennedy's opinion for the Court concludes that the right to marry is fundamental because:

  • the right to personal choice regarding marriage is inherent in the concept of individual autonomy, relying on Loving and Lawrence;
  • it supports a two-person union unlike any other in its importance to the committed individuals, relying on Grsiwold, Rurner v. Safely, and Lawrence;
  • to safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education, relying on Pierce v. Society of Sisters and Windsor;
  • Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order, relying on Maynard v. Hill (1888).
Regarding equal protection, The Court does not articulate a standard for sexual orientation, but discusses the interlocking nature of the constitutional safeguards, relying on Loving, Zablocki v. Redhail, as well as the Lawrence.
The Court's opinion does address the "religious liberty" conflict of rights argument:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same- sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

In dissent, Chief Justice Roberts - - - who some thought might join the majority and in a rare performance read from his dissent on the bench - - - emphasized that limited nature of judicial review and the power of the Court, concluding that the majority's opinion is an "extraordinary step" and predicting that because it is a decision of "five lawyers" this will make the "dramatic social change that much more difficult to accept."
The majority bases its conclusion that same-sex marriage is a fundamental right on "four principles and traditions": (1) right to person choice in marriage is "inherent in the concept of individual autonomy"; (2) "two-person union unlike any other in its importance to the committed individuals"; (3) marriage safeguards children and families; (4) marriage is a keystone to our social order. - See more at:

June 26, 2015 in Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Opinion Analysis, Supreme Court (US) | Permalink | Comments (1)

Thursday, June 25, 2015

The Constitutional Concerns in the Supreme Court's Fair Housing Act Case

The Court's closely divided opinion in Texas Department of Housing and Community Affairs  v. Inclusive Communities Project, Inc., centers on the issue of whether the Fair Housing Act, 42 U. S. C. §3601 et seq., authorizes disparate impact (as distinguished from disparate treatment) claims.  Writing for the Court, Justice Kennedy held that it does.  Kennedy's statutory construction largely rests on interpretations of two precursor discriminatory statutes: Title VII (regarding employment) and the ADEA (prohibiting age discrimination).  It also rests on Congress's 1988 amendments to the FHA which seemingly ratified the availability of disparate-impact liability. 

751px-Fair_housing_protest,_Seattle,_1964Dissenting, Justice Thomas argued that the recognition of disparate-impact in Title VII by the Court in Griggs v. Duke Power (1971), was incorrect then and that error should not be repeated.  In the primary dissent, by Justice Alito, and joined by Thomas, Scalia, and Chief Justice Roberts, the Court's opinion in Griggs is less disparaged.  Instead, Alito argues that Griggs does not support the disparate impact interpretation of FHA, and that nothing in the FHA itself supports such an interpretation.  Moreover, the dissent argues that disparate impact liability will have "unfortunate consequences" of increasing liability, echoing the dissent's graphic opening "No one wants to live in a rat's nest." 

While a statutory interpretation question, Kennedy's opinion for the Court contains two important constitutional law matters.

First, the Court states that disparate-impact liability "has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity."  Statistics are insufficient because there may be valid interests being served by the housing developers "analogous to the business necessity standard under Title VII" and thus "a defense against disparate-impact liability."  Additionally, there must be a "robust causality requirement": "racial imbalance" without a specific link to the defendant's policy or policies causing the disparity cannot be sufficient.  These "safeguards" are necessary lest FHA enforcement "set our Nation back in its quest to reduce the salience of race in our social and economic system."

Second, should a court find a disparate-impact violation of FHA, the remedies a court can order must be constitutional:

Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice that “arbitrar[ily] . . . operate[s] invidiously to discriminate on the basis of rac[e].” Ibid. If additional measures are adopted, courts should strive to design them to eliminate racial disparities through race-neutral means. See Richmond v. J.A. Croson Co., 488 U. S. 469, 510 (1989) (plurality opinion) (“[T]he city has at its disposal a whole array of race- neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races”). Remedial orders that impose racial targets or quotas might raise more difficult constitutional questions.

While the automatic or pervasive injection of race into public and private transactions covered by the FHA has special dangers, it is also true that race may be considered in certain circumstances and in a proper fashion. Cf. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 789 (2007) (KENNEDY, J., concurring in part and concurring in judgment) (“School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; [and] drawing attendance zones with general recognition of the demographics of neighborhoods”). Just as this Court has not “question[ed] an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the [promotion] process,” Ricci, 557 U. S., at 585, it likewise does not impugn housing authorities’ race-neutral efforts to encourage revitalization of communities that have long suffered the harsh consequences of segregated housing patterns. When setting their larger goals, local housing authorities may choose to foster diversity and combat racial isolation with race-neutral tools, and mere awareness of race in attempting to solve the problems facing inner cities does not doom that endeavor at the outset.

[ellipses in original].

Thus, Kennedy for the Court reiterates the so-called "affirmative action" cases that would be used to measure any remedies ordered for a finding of racial discrimination.  Justices Ginsburg, Breyer, Sotomayor, and Kagan, who joined Kennedy's opinion here, might not subscribe entirely to those views given their other opinions on race and equal protection.  

[image: Fair Housing Protest, Seattle 1964, via]

June 25, 2015 in Cases and Case Materials, Courts and Judging, Equal Protection, Opinion Analysis, Race | Permalink | Comments (1)

Wednesday, June 17, 2015

Second Circuit Gives Detainee Case Against Ashcroft, Mueller the Go-Ahead

The Second Circuit ruled today that a civil rights case by former alien detainees against former AG John Ashcroft, former FBI Director Robert Mueller, former INS Commissioner James Zigler, and officials at the Metropolitan Detention Center can move forward.

The ruling is not a decision on the merits, but instead says that the bulk of the plaintiffs' case against the officials is not dismissed and can proceed to discovery.

Still, the ruling is significant, to say the least. It means that officials at the highest level of the DOJ will have to answer in court for their actions that led directly to the wrongful detention and mistreatment of aliens who were mistakenly swept up in the 9/11 investigation, even though, as the court said, "they were unquestionably never involved in terrorist activity."

The case, Turkmen v. Ashcroft, over thirteen years old, challenges the defendants' moves that resulted in the detention and mistreatment of aliens in the post-9/11 investigation, even though they had nothing to do with the 9/11 attacks or terrorist activities. In particular, the plaintiffs claimed that they were detained between three and eight months, without individualized suspicion and because of their race, religion, ethnicity, or national origin, and subjected to various forms of mistreatment.

The plaintiffs alleged that the DOJ defendants took certain actions that resulted in their detention and unlawful treatment, with knowledge that the plaintiffs were wrongfully detained and mistreated. They also alleged that the MDC defendants took official actions that led to their abuse and knew about certain "unofficial abuse."

The defendants moved to dismiss for failure to state a claim, on qualified immunity grounds, and, for some claims, that Bivens did not extend a cause of action. The district court dismissed all claims against the DOJ defendants and some claims against the MDC defendants.

The Second Circuit (mostly) reversed and allowed the case to move forward. The court said that the plaintiffs adequately pleaded their constitutional claims (and met the Iqbal pleading standard) that the DOJ and MDC defendants acted directly to violate the plaintiffs' constitutional rights. Key to the ruling was the plaintiffs' carefully pleaded complaint, which incorporated most of two reports of the DOJ's Office of Inspector General, helping plaintiffs to meet the plausibility test. Also key was the plaintiffs' allegations that the DOJ defendants received regular information on the post-9/11 investigation, including detainees, and that they ordered and implemented certain policies and took certain actions that resulted directly in the plaintiffs' wrongful detention.

Along the way, the court ruled that the plaintiffs had Bivens claims (except for their free exercise claim), even though the DOJ defendants didn't argue Bivens on appeal. The court also ruled that the defendants weren't entitled to qualified immunity, because the law on pretrial detention and mistreatment was clear at the time.

The court concluded:

The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy.

Holding individuals in solitary confinement twenty-three hours a day with regular strip searches because their perceived faith or race placed them in the group targeted for recruitment by al Qaeda violated the detainees' constitutional rights. To use such a broad and general basis for such severe confinement without any further particularization of a reason to suspect an individual's connection to terrorist activities requires certain assumptions about the "targeted group" not offered by Defendants nor supported in the record. It assumes that members of the group were already allied with or would be easily converted to the terrorist cause, until proven otherwise. Why else would no further particularization of a connection to terrorism be required? Perceived membership in the "targeted group" was seemingly enough to justify extended confinement in the most restrictive conditions available.

Judge Reena Raggi dissented.

June 17, 2015 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Fifth Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases | Permalink | Comments (0)

Wednesday, June 3, 2015

New York Court Allows Bar Admission for "Undocumented" Immigrant

A New York appellate court has held that an "undocumented" immigrant can be admitted to the state bar and the practice of law in its opinion in In the Matter of Application of Cesar Adrian Vargas.

Cesar Vargas via

The court considered whether Vargas (pictured right), an "undocumented" immigrant who does posses documents authorizing him to be in the United States and to work under the Deferred Action for Childhood Arrivals (DACA) policy, could be admitted to the New York bar.  The court determined that under state law he could.  Importantly, the court also determined that pursuant to the Tenth Amendment, this state law should prevail.

The statutory landscape is somewhat complex.  As the court explains most succinctly:

[The issue is] whether such an individual is barred from admission to the practice of law by a federal statute, 8 USC § 1621, which generally prohibits the issuance of state professional licenses to undocumented immigrants unless an individual state has enacted legislation affirmatively authorizing the issuance of such licenses.  This presents an issue of first impression in New York and, in terms of the applicability of 8 USC § 1621 and its compatibility with the Tenth Amendment of the United States Constitution, an issue of first impression nationwide.

We hold that a narrow reading of 8 USC § 1621(d), so as to require a state legislative enactment to be the sole mechanism by which the State of New York exercises its authority granted in 8 USC § 1621(d) to opt out of the restrictions on the issuance of licenses imposed by 8 USC § 1621(a), unconstitutionally infringes on the sovereign authority of the state to divide power among its three coequal branches of government.  Further, we hold, in light of this state’s allocation of authority to the judiciary to regulate the granting of professional licenses to practice law (see Judiciary Law § 53[1]), that the judiciary may exercise its authority as the state sovereign to opt out of the restrictions imposed by section 1621(a) to the limited extent that those restrictions apply to the admission of attorneys to the practice of law in the State of New York.  

In essence, the court holds that a federal statute cannot constitutionally require that only a legislative enactment of a state will satisfy the statute's opt-out provision. 

While the court noted that it is "unusual" for a state court to pass judgment on the constitutionality of a federal statute, it is not unprecedented. 

The court found that the Tenth Amendment is implicated because "although Congress has left the ultimate determination whether to extend public benefits, including professional licensure, to the states, it has, at the same time, prescribed the mechanism" - - - exclusively legislative - - - "by which the states may exercise that authority."  But in New York,  the legislature has "determined that the state judiciary is the sovereign authority vested with the responsibility for formulating the eligibility qualifications and processes governing the admission of attorneys and counselors to the practice of law."  Thus, the court concludes that the legislative limitation in the federal statute "cannot withstand scrutiny under the Tenth Amendment."

The court analogized to Gregory v. Ashcroft (1991) in which the United States Supreme Court relied on the Tenth Amendment to reject a federal age discrimination claim by state judges to Missouri's mandatory retirement age of 70.  

Although Gregory addressed the state’s interest in determining who holds office, the State of New York has no less an interest in determining which of its branches of government is empowered to exercise the discretion authorized by section 1621(d) to determine who may be licensed as an attorney and counselor-at-law.  Indeed, the role of New York courts in regulating attorneys is deliberate, well-considered, and time-tested.  There are sound reasons why, in New York, the responsibility for attorney admissions is vested in the state’s judiciary rather than in other branches or departments of government.  As Judge Benjamin Cardozo declared nearly 90 years ago, an attorney is “an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.”

The court then cites the "variety of rules governing the admission and conduct of attorneys" that the New York  judicial branch formulates and oversees: the Rules of Professional Conduct;  the State Board of Law Examiners;  the 50-hour pro bono requirement for new attorney admissions;  the licensure of legal consultants; the admission of counsel pro hac vice;  the payment of biennial attorney registration fees;  the parameters of attorney advertising;  the requirements for attorney-client retainer agreements;  and the imposition of discipline upon attorneys who violate the state’s ethics rules.

For the court, the "ability, indeed the right, of the states to structure their governmental decision-making processes as they see fit is essential to the sovereignty protected by the Tenth Amendment."  Thus, the federal statute cannot limit the decision regarding noncitizen licensure to only one branch of a state's government.

While equal protection and other constitutional arguments were raised in the case, the court's interpretation of the federal statute and its own conclusion regarding the applicant's suitability for bar admission obviated consideration of those arguments.

[full disclosure: Vargas is a graduate of CUNY School of Law].

June 3, 2015 in Courts and Judging, Current Affairs, Equal Protection, Federalism, Tenth Amendment | Permalink | Comments (1)

Wednesday, May 27, 2015

Second Circuit Upholds DMV Ban of "Choose Life" License Plate Against First Amendment Challenge

In its divided opinion in Children First Foundation v. Fiala, the Second Circuit held that the Commissioner of Motor Vehicle's rejection of "Choose Life" license plates for the state's specialty plate program is constitutional.  Judge Pooler, joined by Judge Hall, reversed the district judge's conclusion that the rejection violated the First Amendment. 

The Second Circuit's divided opinion enters the fray of what might be called the developing doctrine of license plates, be they state-mandated, vanity, or as here, "specialty" plates issued by the state as a means of raising revenue. As we've discussed, the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.  

The progenitor of this doctrine is the classic First Amendment case of Wooley v. Maynard (1977) involving compelled speech.  This Term the Court heard oral arguments in Walker v. Texas Sons of Confederate Veterans; a divided Fifth Circuit had held that the rejection of the Sons of Confederate Veterans plate (featuring the Confederate flag) was a violation of the First Amendment as impermissible content and viewpoint discrimination.  The Second Circuit stayed the mandate of its decision pending the outcome of Walker. 

The specialty license plate litigation involves the intersection of a number of First Amendment doctrines.  As Judge Pooler's opinion in Children First Foundation expressed its holding:

We conclude that the content of New York’s custom license plates constitutes private speech [rather than government speech] and that the plates themselves are a nonpublic forum. CFF’s facial challenge fails because New York’s custom plate program did not impermissibly vest the DMV Commissioner with unbridled discretion in approving custom plate designs. Furthermore, that program, as applied in this case, was reasonable and viewpoint neutral, which is all that the First Amendment requires of restrictions on expression in a nonpublic forum.

Judge Pooler's well-structured opinion supports this conclusion.  First, the court considers whether the license plate is government speech or private speech.  If the speech is government speech, then the First Amendment has little application. (Recall that this was the position of the dissenting judge in the Fifth Circuit's decision in Sons of Confederate Veterans).  Agreeing with other circuits, the court reasons that an application of Pleasant Grove City, Utah v. Summum (2009) and Johanns v. Livestock Marketing Ass’n (2005) leads to " little difficulty concluding that such an observer would know that motorists affirmatively request specialty plates and choose to display those plates on their vehicles, which constitute private property."

Next, Judge Pooler's opinion considers the type of forum and concludes it is a "nonpublic forum," rejecting a comparison to a designated public forum formed when the government accepts advertising on buses.   Nevertheless, the opinion notes that the prohibition of "unbridled discretion" as a type of prior restraint is prohibited even in nonpublic forums. 
However, the court finds that the DMV does not exercise unbridled discretion that renders the DMV specialty license plate program facially unconstitutionally.  The court does note that the statute and regulation afford the DMV "broad discretion" and - - - standing alone - - - their ability "to provide an adequate safeguard against the Commissioner’s exercise of unbridled authority is dubious."  This argument is the centerpiece of Judge Livingston's extensive dissent.  For the majority, the agency policies and practices, written and unwritten, are highly pertinent.  The court specifically considers whether there was a uniform application.  It approvingly notes that the DMV denied a vanity plate for "RU486," with its reference to the so-called "morning-after pill."  And the court distinguishes specialty plates like "Cop Shot" and "Union Yes":

bringing to justice individuals who have attacked police officers cannot reasonably compare—either by its very nature or by the level of contentiousness that surrounds it—to the issue of abortion. With respect to the decision to issue a “Union Yes” plate, while the myriad issues pertaining to organized labor in the United States are social and political in nature, there is no basis to conclude that the Department failed to apply the policy against creating plates that touch upon contentious political issues as opposed to having applied the policy and merely reaching a different result than it did with the “Choose Life” plate.

Finally, regarding the as-applied challenge, which in some respects overlaps with the facial challenge, the court noted that while the distinction between viewpoint and content discrimination can be "hazy," a rejection of all abortion-related speech in a nonpublic forum is the type of content related policy that is subject only to a reasonableness requirement.  The court recognized the state's legitimate interests of avoiding road rage and avoiding the appearance of the government endorsing one side in a contentious political debate.  Interestingly, regarding "road rage," the court rejected CFF’s contention that because the “Choose Life” plates have been "available for purchase in other states for twelve years with no definitive proof of ill effects," this  and concluded that this did not render unreasonable New York’s decision, especially given the timing of the application and ejection when "the DMV was aware of violent protests and bombings at abortion clinics." 
Additionally, the court rejected CFF's due process and equal protection claims.
The Second Circuit's opinion is sure to be reevaluated when the United States Supreme Court renders its decision in Walker v. Sons of Confederate Veterans, as the court recognized when it stayed its mandate.  The court's delivery of its decision before Walker could be subjected to much speculation.


May 27, 2015 in Abortion, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, First Amendment, Opinion Analysis, Reproductive Rights, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 26, 2015

Supreme Court to Review Batson Challenge in Georgia Death Penalty Case

The United States Supreme Court granted certiorari today in Foster v. Humphrey to the Georgia Supreme Court denying post-conviction relief. 

According to the petition, in 1987, an all-white jury convicted Timothy Tyrone Foster, a "poor, black, intellectually compromised eighteen year old" of the murder of an elderly white woman.  At trial, one black potential juror was removed for cause, and the prosecutors removed all four of the remaining black prospective jurors by peremptory strike, and proffered race-neutral reasons when defense counsel raised a challenge under the then-recent case of  Batson v. Kentucky (1986).  The judge rejected defense counsel's argument that the race-neutral reasons were pretexual and denied the Batson challenge.  The Georgia courts affirmed.

FosterImageAlmost twenty years later, pursuant to a request under the state open records act, Foster gained access to the prosecution team's jury selection notes, which included highlighting the black potential jurors (image at right), circling the word "black" as an answer to the race question on the juror questionnaire, identifying the black potential jurors as B#1, B#2, and B#3 in the notes, and a draft affidavit by the prosecution investigator stating "“if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining.”  (The affidavit was originally submitted to the court with all mentions of race excised). 

In the post-conviction proceeding, the court held that "[t]he notes and records submitted by Petitioner fail to demonstrate purposeful discrimination on the basis that the race of prospective jurors was either circled, highlighted or otherwise noted on various lists."  The Georgia Supreme Court declined review.

In granting certiorari, the United States Supreme Court could certainly agree with the Georgia courts and simply affirm.  Assuming the Court granted certiorari because of some disagreement with the conclusions, the Court might take a broader approach.  According to the petition in Foster, the prosecution "proffered a combined forty reasons for striking" the four black potential jurors.  Because there are almost always "neutral" reasons for exercising a peremptory challenge - - - given that it can be based on essentially a "hunch" - - - proving racial motivation and discrimination can be difficult.  The Court has the opportunity to revisit Batson and the problem of distinguishing between race-neutral and pretextual reasons, perhaps providing a more workable and fair rule.



May 26, 2015 in Courts and Judging, Criminal Procedure, Equal Protection, Federalism, First Amendment, Fundamental Rights, Habeas Corpus, Race, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 28, 2015

Supreme Court Hears Same-Sex Marriage Arguments in Obergefell v. Hodges

The Court today heard oral arguments in two parts in the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans.   There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.

For oral argument on the first certified question - - -does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? - - - Mary Bonauto argued for the Petitioners; Solicitor Donald Verrilli argued for the United States as amicus curiae supporting Petitioners; and John Bursh, as Special Assistant Attorney for Michigan argued for Respondents. 

For oral argument on the second certified question - - - does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? - - -Douglas Hallward-Driemeier argued for Petitioners and Joseph Whalen, Associate Solicitor General of Tennessee, argued for Respondents.

The Court and the advocates acknowledged that the second question is only reached if the first question is answered in the negative: Justice Ginsburg and Justice Kagan both posited this principle with Hallward-Driemeier and Whalen, respectively, agreeing. Chief Justice Roberts noted that" we only get to the second question if you've lost on that point already, if we've said States do not have to recognize same-­sex marriage as a marriage," and later raised the issue of whether the second question made practical sense:

It certainly undermines the State interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere. It'd simply be a matter of time  until they would, in effect, be recognizing that within the State.


Donkey Hotey via

 The themes of the oral arguments held no surprising issues:

Is a same-sex marriage decision by the Court premature?  Interestingly, Justice Kennedy pointed out that it is "about the same time between Brown and Loving as between Lawrence and this case. It's about 10 years." 

Should it be the Court or the states that should decide?  The question of the proper role of judicial review has long preoccupied the courts in the context of same-sex marriage. Justice Scalia raised this issue several times, but when John Bursh raised it on behalf of Michigan, Justice Kagan responded that "we don't live in a pure democracy; we live in a constitutional democracy."

Is the race analogy apt?  Bursch distinguished Loving (as well as Turner v. Safley and Zablocki v. Redhail) because previous cases involved man-woman marriage and  "States' interest in linking children to their biological" parents.

Is there a slippery slope?  What about polygamous and incestuous marriages?  What about age of consent laws?

What about religious freedom?  How do we know that ministers won't be forced to perform "gay marriages"?

Should the case be resolved on Equal Protection or Due Process?  Justice Kennedy asked General Verrilli about Glucksberg,   Verrilli replied:

  1. GENERAL VERRILLI: Justice Kennedy, forgive me for answering the question this way. We do recognize that there's a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven't made the fundamental rights argument under Glucksberg. And therefore, I'm not sure it would be appropriate for me not having briefed it to comment on that.

  2. JUSTICE KENNEDY: Well, can you tell me why you didn't make the fundamental argument?

  3. GENERAL VERRILLI: Well, because we think ­­well, because we think while we do see that there is, of course, this profound connection, we do think that for reasons like the ones implicit in the Chief Justice's question, that this issue really sounds in equal protection, as we understand it, because the question is equal participation in a State conferred status and institution. And that's why we think of it in equalprotection terms

As an equal protection case, it is one about sexual orientation or sex discrimination?  One of the more interesting questions was posed by Chief Justice Roberts to Bursch:

Counsel, I'm ­­ I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?

How is the state's interest in procreation related to the ban on same-sex marriage?  Justice Ginsburg, as well as others, posed questions about the elderly not being barred from marriage.
Is marriage a changing institution or is a constant for millennia?  Justice Ginsburg predictably noted that marriage was once "a dominant and a subordinate relationship," with women being subordinate, while Chief Justice Roberts disputed the fact that women's subordination (or coverture) was a universal aspect of marriage.
Does the Full Faith and Credit Clause, Article IV, guarantee a state will recognize another state's marriage?  Justice Scalia noted he was "glad" to be able to quote Article IV, "a portion of the Constitution that actually seems to be relevant," although there remained a lack of clarity in its applications.  Is a marriage a public act?  record?  judgment? 

The open question is whether the Court's opinion will be as predictable as the questions.

April 28, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Full Faith and Credit Clause, Fundamental Rights, Oral Argument Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Friday, April 24, 2015

Ninth Circuit Upholds Arizona's Voter Registration Form for Party Preference

Before 2011, Arizona law required that voter registration forms include a blank space for the registrant’s party preference.  But a 2011 law required the voter registration form distributed by the Arizona Secretary of State to list the two largest parties (as measured by number of registered voters) on the form, as well as provide a blank line for “other party preferences.” Ariz. Rev. Stat. § 16-152(A)(5).

In response to the amendment, the Arizona Secretary of State revised box 14 on the Registration Form, and the opinion includes this illustration:


Arizona_registrationMinority parties Arizona Green Party and the Arizona Libertarian Party challenged the new law as violative of their First and Fourteenth Amendment rights.  In its opinion in Arizona Libertarian Party v. Bennett, the Ninth Circuit upheld the statute as constitutional.

The panel majority opinion by Judge Tashima noted the intertwining of the equality and First Amendment claims:

“Restrictions on voting can burden equal protection rights as well as ‘interwoven strands of liberty’ protected by the First and Fourteenth Amendments—namely, the ‘right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.’”

It stated that the party challenging the law bears “the initial burden of showing that [the state’s] ballot access requirements seriously restrict the availability of political opportunity" and that here any burden was de minimis.  The panel thus applied rational basis scrutiny which the new form easily passed.

Concurring, Judge McKeown argued that the rational basis review burden-shifting standards derived from Ninth Circuit precedent and which the majority applied were "inconsistent with the Supreme Court’s approach to analyzing voting rights challenges." Instead, the court should apply the balancing tests articulated in Burdick v. Takushi (1992) and reiterated in Crawford v. Marion County Election Board (2008), although Judge McKeown acknowledged that the "semantic distinction between the balancing test and the rational basis standard" may make little difference in most cases.  Indeed, here Judge McKeown recognized that Arizona's asserted interests in reducing printing costs and easing administrative efficiency are “sufficiently weighty to justify” the speculative burden on the plaintiff minority parties' rights.


April 24, 2015 in Association, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, April 16, 2015

Guide to the Amicus Briefs in Obergefell v. Hodges: The Same-Sex Marriage Cases

The United States Supreme Court is set to hear oral arguments on April 28 in the same-sex marriage cases, now styled as Obergefell v. Hodges, a consolidated appeal from the Sixth Circuit’s decision in DeBoer v. Snyder, reversing the district court decisions in  Kentucky, Michigan, Ohio, and Tennessee that had held the same-sex marriage bans unconstitutional, and creating a circuit split.    

 Recall that the Court certified two questions:

    1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

    2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? 

The case has attracted what seems to be a record number of amicus briefs.  As we discussed last year, previous top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92.  [Note that the "Obamacare" Affordable Care Act cases including 2012's consolidated cases of  NFIB v. Sebelius attracted 136 amicus briefs.]

The count for Obergefell v. Hodges stands at  139. 147  [updated: 17 April 2015]  149 [updated]  LINKS TO ALL THE BRIEFS ARE AVAILABLE ON THE ABA WEBSITE HERE.

 76  77 amicus briefs support the Petitioners, who contend that same-sex marriage bans are unconstitutional.

58 66 67 amicus briefs support the Respondents, who contend that same-sex marriage bans are constitutional.

05 amicus briefs support neither party (but as described below, generally support Respondents).

According to the Rules of the Supreme Court of the United States, Rule 37, an amicus curiae brief’s purpose is to bring to the attention of the Court “relevant matter not already brought to its attention by the parties.”  While such a brief “may be of considerable help to the Court,” an  “amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”

 An impressive number of the Amicus Briefs are authored or signed by law professors.  Other Amici include academics in other fields, academic institutions or programs, governmental entities or persons, organizations, and individuals, often in combination.  Some of these have been previously involved in same-sex marriage or sexuality issues and others less obviously so, with a number being religious organizations. Several of these briefs have been profiled in the press; all are linked on the Supreme Court’s website and on SCOTUSBlog.

Here is a quick - - - if lengthy - - - summary of the Amici and their arguments, organized by party being supported and within that, by identity of Amici, beginning with briefs having substantial law professor involvement, then government parties or persons, then non-legal academics, followed by organizations including religious groups, and finally by those offering individual perspectives.  [Late additions appear below]Special thanks to City University of New York (CUNY)  School of Law Class of 2016 students, Aliya Shain & AnnaJames Wipfler, for excellent research.


Continue reading

April 16, 2015 in Courts and Judging, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Foreign Affairs, Fourteenth Amendment, Free Exercise Clause, Full Faith and Credit Clause, Fundamental Rights, Gender, History, Interpretation, Privacy, Profiles in Con Law Teaching, Race, Recent Cases, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US), Theory | Permalink | Comments (3)

Monday, March 30, 2015

Supreme Court Denies Certiorari to School's Ban on American Flag Clothing for Cinco de Mayo

In a summary order today,  the United States Supreme Court listed among the cases denied certiorari the controversial "Cinco de Mayo" case, Dariano v. Morgan Hill Unified School District. 

available via

The original controversy began with 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 school officials regulated American flag clothing "in [the] context of ongoing racial tension and gang violence within the school, and after a near-violent altercation had erupted during the prior Cinco de Mayo over the display of an American flag.”  The district judge rejected the students' First Amendment and Equal Protection claims.  The Ninth Circuit affirmed,  and later denied en banc review, over a dissent, and issued an amended panel opinion which added several paragraphs of analysis.

The application of the classic Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) was predictable, but the amended opinion also discussed the “heckler’s veto,” a concept that is in some senses embedded in Tinker's "disruption" standard.

However, with the denial of certiorari, this particular  controversy - - - which had often been expressed as allowing a school district to ban the American flag - - - has apparently been decided, at least in the context of this particular school for a particular holiday on a particular year. 

However, as the opinion of the Ninth Circuit as amended noted, situations involving displays of the Confederate flag in the school context have been frequently litigated.   And this Term, the Court is considering a Confederate flag outside the school context in the "license plate" case just argued last week, Walker v. Texas Sons of Confederate Veterans.

March 30, 2015 in Equal Protection, First Amendment, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, March 26, 2015

Indiana Governor Signs Controversial State RFRA Law

Governor Mike Pence of Indiana  in a "private ceremony," signed the controversial Senate Act 101, a state RFRA, into law. 

Governor Mike Pence of Indiana via

Like the federal RFRA - - - the basis for the majority opinion of the United States Supreme Court in Hobby Lobby v. Burwell finding that the so-called "contraceptive mandate" of "Obamacare" was invalid - - - the Indiana RFRA provides in section 8:

(a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability.
(b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person:
    (1) is in furtherance of a compelling governmental interest; and
    (2) is the least restrictive means of furthering that compelling governmental interest.

 The Indiana statute makes clear that a if a person's exercise of religion "is likely to be substantially burdened," the person may "assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding." 

For many, this signals a religious exemption from anti-discrimination laws protecting LGBTQ persons.  (Although Indiana does not include sexuality or gender identity in its discrimination laws, some localities and institutions do.)  Governor Pence alluded to this argument, even as he interestingly (and some might say misleadingly) highlighted the "government action" requirement in his signing statement:

“This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. In fact, it does not even apply to disputes between private parties unless government action is involved. For more than twenty years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana."

Nevertheless some companies are already reacting to a perception that Indiana has now sanctioned LGBTQ discrimination.

March 26, 2015 in Current Affairs, Equal Protection, Free Exercise Clause, News, Religion | Permalink | Comments (3) | TrackBack (0)

Wednesday, March 25, 2015

In Victory for Plaintiffs, Court Vacates, Remands Alabama Redistricting Case

The Supreme Court ruled today (5-4, with Justice Kennedy joining the four progressives in the majority) that the district court erred in its analysis of the plaintiffs' racial gerrymandering claims against the State of Alabama in the wake of the state's redistricting after the 2010 census. The ruling, a victory for the plaintiffs, sends the case back to the district court and allows the parties to introduce additional evidence to support their cases. It also gives the momentum to the plaintiffs on the merits. We previously posted on the case here.

The case now goes back to the district court for reconsideration in light of the four points below. Today's ruling also allows the plaintiffs to submit additional evidence in support of their claims, thus strengthening their district-specific discrimination claims, their claims that race was a predominate factor in drawing certain districts, and their argument that the state's use of race wasn't sufficiently tailored to comply with Section 5 of the Voting Rights Act.

Thus while today's ruling isn't an outright victory for the plaintiffs, it gives them the clear momentum on remand.

The case, Alabama Legislative Black Caucus v. Alabama, arose after Alabama redrew its legislative districts in a way that packed black voters into existing majority-minority districts. The state said it did this in order to avoid retrogression under Section 5 of the Voting Rights Act. (The state was then covered by Section 5, pre-Shelby County.) The plaintiffs challenged the move as a racial gerrymander. The three-judge district court rejected the challenge and ruled in favor of the state.

The Court (by Justice Breyer) vacated that ruling and remanded the case. Justice Breyer wrote that the district court made four legal mistakes:

1. The district court treated the plaintiffs' challenge to the redistricting as a whole, when it should have treated the challenge in specific electoral districts. The Court said that the district court concluded that because racial criteria had not predominated in redrawing some districts, racial criteria did not predominate "with respect to the State as an undifferentiated whole." This was in error. Moreover, the Court held that the plaintiffs didn't pitch their case only against the State as an undifferentiated whole (as the dissent argued); instead, the plaintiffs presented evidence to support a district-specific approach (even if they could have made this case "more clearly")--the approach that the district court should have used.

The Court ordered the district court to consider a district-specific approach on remand and allowed the plaintiffs to produce additional evidence to support their claims.

2. The district court erroneously held that the Alabama Democratic Conference lacked standing to make its claims against redistricting as a whole and as to four individual Senate districts. The district court said that the Conference lacked associational standing, because the record didn't clearly identify the districts where individual Conference members resided. The Court said this was wrong--and that the district court should have given the Conference an opportunity to show standing. The Court held that the recorded supported the fact that the Conference was state-wide, and had members in each of the state's majority-minority districts. The Court ordered the district court on remand to "reconsider the Conference's standing by permitting the Conference to file its list of members and permitting the State to respond, as appropriate."

3. The district court erred by holding in the alternative that the race was not a predominant factor in the creation of any individual district. The Court held that the district court "did not properly calculate 'predominance,'" because it concluded that the state considered race along with other race-neutral factors, so that the other factors outweighed the consideration of race. Justice Breyer explained:

In our view, however, an equal protection goal is not one factor among others to be weighed against the use of race to determine whether race "predominates." Rather, it is part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator's determination as to how equal population objections will be met."

In other words, the question whether race predominates compares a state's consideration of race with its consideration of race-neutral factors like compactness, contiguity, respect for political subdivisions or communities, incumbency protection, and political affiliation. But that comparison list does not include equal population. Equal population is different, because it's constitutionally required. "It is not a factor to be treated like other nonracial factors when a court determines whether race predominates over other, 'traditional' factors in the drawing of district boundaries." Instead, it's a "background rule against which redistricting takes place." And the district court was wrong to say otherwise.

Treating equal population as a background rule (and not one of the nonracial factors), the Court said that race might well have predominated in the drawing of certain districts. It remanded for reconsideration.

4. The district court wrongly concluded that even if race predominated, the gerrmandering claims failed because the redrawn districts satisfied strict scrutiny--that is, they are drawn to comply with Section 5 of the VRA. The Court said that the district court misperceived Section 5: It "does not require a covered jurisdiction to maintain a particular numerical minority" (as the district court held), but rather "requires the jurisdiction to maintain a minority's ability to elect a preferred candidate of choice."

Justice Scalia wrote the principal dissent, joined by Chief Justice Roberts and Justices Thomas and Alito. Justice Scalia said that the plaintiffs screwed up their case by alleging a state-wide violation--a claim the law doesn't allow--and that the majority wrongly gave them a do-over.

[A]llowing appellants a second bite at the apple invites lower courts similarly to depart from the premise that our is an adversarial system whenever they deem the stakes sufficiently high. Because I do not believe that Article III empowers this Court to act as standby counsel for sympathetic litigants, I dissent.

Justice Thomas wrote a separate dissent for himself alone to say how "our jurisprudence in this area continues to be infected with error." "We have somehow arrived at a place where the parties agree that Alabama's legislative districts should be fine-tuned to achieve some 'optimal' result with respect to black voting power; the only disagreement is about what percentage of blacks should be placed in those optimized districts. This is nothing more than a fight over the 'best' racial quota.'"


March 25, 2015 in Cases and Case Materials, Elections and Voting, Equal Protection, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Friday, March 20, 2015

Puerto Rico Decides Not to Contest Constitutional Challenge to Same-Sex Marriage Ban

In a brief filed today in the First Circuit in Conde-Vidal v. Armendariz, the Solicitor General of the Commonwealth of Puerto Rico essentially sided with the appellants and conceded its same-sex marriage ban is unconstitutional.

Recall that several months ago, United States District Judge for the District of Puerto Rico Juan Perez-Gimenez  dismissed the constitutional challenge to Puerto Rico's law defining marriage as "man and woman" and refusing recognition to marriages "between persons of the same sex or transexuals." In large part, Judge Perez-Gimenez relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question."

The challengers appealed to the First Circuit and the Commonwealth's brief "concedes that Baker’s rationale that federal courts lack jurisdiction to entertain these claims for lack of a substantial federal question can no longer be deemed good law." 

800px-Flag_of_Puerto_Rico_(Light_Blue).svgIndeed, the Commonwealth's brief concedes that the appellants should prevail.  The brief concludes:

It is not usual for the Executive Branch of the Commonwealth of Puerto Rico to refuse to defend the constitutionality of legally-enacted statutes. It is even less usual to adopt a somewhat different position at the appellate level than the one espoused before the lower court. But this is not a usual case and neither the law nor common sense requires us to treat it as such.

In a constitutional democracy there are some rights that have been reserved to the People directly and which no government may infringe, regardless of individual or personal views on the matter. “Our obligation [like this Court’s] is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).

Article 68 of the Civil Code of Puerto Rico excludes LGBT couples from the legal entitlements and rights attendant to civil marriage. Thus, the Commonwealth of Puerto Rico acknowledges that the statute in controversy raises substantial constitutional questions anent the constitutional guarantees of equal protection of the laws and substantive due process.

Because Puerto Rico’s marriage ban impermissibly burdens Plaintiffs ́ rights to the equal protection of the laws and the fundamental right to marry, we have decided to cease defending its constitutionality based on an independent assessment about its validity under the current state of the law. However, “i[t] is emphatically the province and duty of the judicial department to say what the law is.” Windsor, 133 S.Ct. 2675, at 2688 (quoting Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1802)), and, since the District Court entered judgment in this case, it is this particular Court’s duty to review the legal conclusions there reached so that they may be brought up to date in accordance with newer developments in this important area of constitutional law.

If History has taught us anything, it is that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence, 579 U.S. at 579. This case represents but another attempt from a politically disadvantaged group of our society to be included within the full scope of the legal and constitutional protections that most of us take for granted. Plaintiffs seek no preferential treatment; only equality. The Executive Branch of the Commonwealth recognizes the LGBT community’s right to equality under the law.

Defendants-Appellees request that this Honorable Court reverse the Judgment of the District Court that dismissed Plaintiffs-Appellants’ complaint for lack of a substantial federal question.

Given this concession, the First Circuit - - - which has not had occasion to rule on a challenge to a "state" same-sex marriage ban - - - is sure to find that Puerto Rico's same-sex marriage ban is unconstitutional, assuming it reaches the issue before the United States Supreme Court decides the issue in the cases presently before it. 

Recall that the First Circuit did rule that DOMA, the Congressional statute barring federal recognition of same-sex marriage, was unconstitutional in 2012, before the  United States Supreme Court held DOMA unconstitutional in United States v. Windsor, but after the United States Attorney General, Eric Holder, announced the Department of Justice would not defend the constitutionality of DOMA. 

March 20, 2015 in Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Interpretation, News, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 18, 2015

No Attorney Fees in Long-Running Texas Redistricting Case

The Fifth Circuit denied the plaintiffs' claims for attorneys fees in the 2012 case out of San Antonio over Texas redistricting. The ruling marks a bitter end for the plaintiffs in this long-running and complicated dispute that put the plaintiffs between two district courts, two different sections of the Voting Rights Act, the Texas legislature, and the Supreme Court--and stuck them with a $360,000 bill for . . . a victory. The ruling rewards Texas's foot-dragging through the preclearance process as two cases simultaneously worked their ways through the courts.

Recall that the plaintiffs sued Texas in the Western District of Texas over the legislature's redistricting plan. The plaintiffs argued that the plan violated Section 2 of the Voting Rights Act and the Equal Protection Clause, and that it hadn't been precleared under Section 5. (The preclearance case was pending before a three-judge court in D.C.) The San Antonio court enjoined the legislature's redistricting plan because it hadn't been precleared and drew its own district maps.

The Supreme Court then stepped in and rejected the San Antonio court's maps, but gave the court another shot at drawing them. The San Antonio court redrew the maps according to the Supreme Court's new standard. Following the Supreme Court, the San Antonio court issued its new maps as "a result of preliminary determinations regarding the merits of the Section 2 and constitutional claims presented in this case, and application of the 'not insubstantial' standard for the Section 5 claims." (That "not insubstantial" standard said that the San Antonio court could only consider the Section 5 preclearance claim insofar as the plaintiffs' challenges in the D.C. court were "not insubstantial." But the merits of the Section 5 claim were reserved to the D.C. court (and not the San Antonio court).)

The D.C. court denied preclearance to the Texas legislature's maps. Texas appealed, but used the San Antonio court's plan as an interim plan for its 2012 elections.

In 2013, the Supreme Court struck the preclearance coverage formula in Shelby County and later vacated the D.C. court's judgment denying preclearance to the legislature's plan. At the same time, Governor Perry signed a bill repealing the legislature's plan and adopting the court's plan. The San Antonio district court dismissed the case (or what remained of it, the plaintiffs' Section 2 and constitutional claims).

This seems like a win for the plaintiffs. So why no attorney fees?

The Fifth Circuit held that the plaintiffs weren't "prevailing parties" under the fee-shifting statute. The court said that the plaintiffs couldn't have won their Section 5 claim at the San Antonio court, because only the D.C. court can rule on the merits of a Section 5 claim. And the Fifth Circuit said that the plaintiffs didn't win their Section 2 and constitutional claims at the San Antonio court, because the San Antonio court never evaluated them.

The Fifth Circuit suggested that the plaintiffs might have been "prevailing parties" under a "catalyst theory," by merely demonstrating that their lawsuit caused Texas to alter its conduct. But the Fifth Circuit noted that the Supreme Court rejected this approach in Buckhannon.


March 18, 2015 in Cases and Case Materials, Elections and Voting, Equal Protection, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Fourth Circuit Dismisses Challenges to Muni Election Law

The Fourth Circuit ruled in Greenville County Republican Party v. Greenville County Election Commission that various challenges to South Carolina's municipal election procedures lacked justiciability and dismissed the case.

South Carolina law required municipalities to adopt by ordinance either a partisan or nonpartisan way of nominating candidates for public office in municipal elections. If a municipality selected the partisan method, South Carolina law allowed a certified political party to select one of three procedures: a party primary, a party convention, or a petition. Nomination by party primary required an open primary. Nomination by convention required a 3/4 super-majority vote of the party membership.

The Greenville County Republican Party Executive Committee, an affiliate of the state Republican party but not itself a certified political party, challenged these procedures under the First, Fifth, and Fourteenth Amendments. The Committee sought declaratory and injunctive relief, and monetary damages for having to implement the procedures in prior elections.

As the case worked its way up and down, Greenville changed its ordinance to nominate candidates using a nonpartisan procedure.

The Fourth Circuit ruled that this mooted the Committee's claims for prospective relief. In particular, the court said that the County's decision was not capable of repetition but evading review, because the Committee didn't satisfy its burden of establishing "a reasonable expectation" that it wouldn't go back to the partisan method of nominating candidates for future elections.

As to the surviving claims, the court held that the Committee lacked standing. The court said that the Committee didn't suffer any harm from the super-majority requirement for convention-nominated candidates; instead, the state party suffered that harm--making the Committee's claim a nonjusticiable third-party claim. The court also held that the Committee couldn't satisfy the traceability prong of standing, because it was the state party, not Greenville, that elected to use the open primary system. (The state Republican Party was at one time party to the suit, but withdrew.)

The ruling ends this suit, and, in the wake of Greenville's decision to use a nonpartisan nominating process, almost certainly ends any challenges to Greenville's old partisan process.

March 18, 2015 in Association, Cases and Case Materials, Elections and Voting, Equal Protection, Fifth Amendment, First Amendment, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Sunday, March 8, 2015

Daily Read: The First Amendment and the Selma March

Over at the Los Angeles Times in an Op-Ed, ConLawProf Ronald J. Krotoszynski Jr. argues that present First Amendment doctrine would preclude the famous Selma march being commemorated on its 50th anniversary today.

640px-Selma_to_Montgomery_marches_-_historic_route_retouchedKrotoszynski contends that it would now be "impossible to obtain a federal court order permitting a five-day protest march on a 52-mile stretch of a major U.S. highway" and that under "contemporary legal doctrine, the Selma protests would have ended March 8, 1965."

He faults the reshaping of public forum doctrine and time, place or manner restrictions so that "protests" are now relegated to "designated speech zones."  He highlights the recent litigation regarding the First Amendment rights of protestors in Ferguson, which, although successful on behalf of the protestors, was a success that was both delayed and partial.

Krotoszynski's op-ed is an important reminder that while voting rights and equality are integral to the remembrance of Selma as President Obama elucidated in his speech,  "Selma's main lesson" might also be that "taking to the streets and other public spaces in protest is central to our democracy." 


March 8, 2015 in Association, Equal Protection, First Amendment, Fourteenth Amendment, History, Profiles in Con Law Teaching, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Daily Video: President Obama's Selma Speech

On the 5oth anniversary of the Selma-Montgomery March, President Obama and other dignitaries gathered in Selma to commemorate the iconic protest which is widely believed to have galvanized support for the Voting Rights Act of 1965. 

Given the Court's closely divided and controversial 2013 decision in Shelby County (Alabama) v. Holder finding parts of the Voting Rights Act unconstitutional, as well as subsequent efforts by states to enact voting restrictions, Obama not surprisingly included pertinent references in his speech:

And with effort, we can protect the foundation stone of our democracy for which so many marched across this bridge –- and that is the right to vote.  Right now, in 2015, 50 years after Selma, there are laws across this country designed to make it harder for people to vote.  As we speak, more of such laws are being proposed.  Meanwhile, the Voting Rights Act, the culmination of so much blood, so much sweat and tears, the product of so much sacrifice in the face of wanton violence, the Voting Rights Act stands weakened, its future subject to political rancor.

How can that be?  The Voting Rights Act was one of the crowning achievements of our democracy, the result of Republican and Democratic efforts. President Reagan signed its renewal when he was in office.  President George W. Bush signed its renewal when he was in office.   One hundred members of Congress have come here today to honor people who were willing to die for the right to protect it.  If we want to honor this day, let that hundred go back to Washington and gather four hundred more, and together, pledge to make it their mission to restore that law this year.  That’s how we honor those on this bridge. 

Obama left unelaborated what Congress might do in light of the Court's decision in Shelby.  A full text of Obama's speech is here, but the video is worth watching:




March 8, 2015 in Current Affairs, Elections and Voting, Equal Protection, Federalism, Fourteenth Amendment, News, Race, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Monday, March 2, 2015

Nebraska Federal Judge Declares Same-Sex Marriage Ban Unconstitutional

Senior United States District Judge Joseph Bataillon has enjoined Nebraska's same-sex marriage ban in its state constitution and found it violates the Fourteenth Amendment in his  Memorandum and Order today in Waters v. Ricketts.

Recall that the United States Supreme Court will be hearing the issue this Term, having granted certiorari to the Sixth Circuit's divided opinion in the consolidated cases of DeBoer v. Snyder. The Court previously denied certiorari to opinions from the Fourth, Seventh, and Tenth Circuits all finding that same-sex marriage bans were unconstitutional, and the Ninth Circuit has ruled similarly.  The Eighth Circuit, in which Nebraska is located, has not issued a definitive opinion on the constitutionality of same-sex marriage. 

NebraskaJudge Joseph Bataillon's ruling sounds in both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. He finds that marriage is a "fundamental liberty" and that the same-sex marriage ban is a facial classification based on gender. He also finds that Nebraska's state interests, including opposite sex parenting  and protecting tradition, are insufficient.  Throughout his analysis, he relies heavily on the Seventh Circuit's opinion in Baskin and the Ninth Circuit's opinion in Latta. 

 Interestingly, Judge Bataillon offers a prediction of the Court's conclusion:

The court finds the plaintiffs have demonstrated they will likely prevail on the merits of their claim. The court is persuaded that the Supreme Court will ultimately endorse, for one reason or another, the results obtained in the Fourth, Seventh, Ninth and Tenth Circuit challenges to same sex marriage bans.

Judge Bataillon supports this statement with an interesting footnote [15]:

This conclusion is supported by the Supreme Court's recent denial of a stay of an Alabama district court decision invalidating a same-sex marriage ban. See Strange v. Searcy, 2015 WL 505563 (U.S. Feb. 9, 2015) (denying of application for stay of an injunction preventing Attorney General of Alabama from enforcing Alabama laws as defining marriage as a legal union of one man and one woman) (Justice Thomas noting in dissent that the failure to stay the injunction “may well be seen as a signal of the Court's intended resolution [of the constitutional question it left open in Windsor]."); see also Armstrong v. Brenner, No. 14A650, 2014 WL 7210190 (U.S. Dec. 19, 2014) (denying stay of preliminary injunction barring enforcement of Florida’s marriage exclusion); Wilson v. Condon, 14A533, 2014 WL 6474220 (U.S. Nov. 20, 2014) (denying stay of judgment finding South Carolina’s marriage exclusion laws unconstitutional); Moser v. Marie, 14A503, 2014 WL 5847590 (U.S. Nov. 12, 2014) (denying stay of preliminary injunction preventing enforcement of Kansas’ marriage exclusion); Parnell v. Hamby, No 14A413, 2014 WL 5311581 (U.S. Oct. 17, 2014) (denying stay of district court decision declaring Alaska’s marriage exclusion unconstitutional); Otter v. Latta, No. 14A374, 2014 WL 5094190 (U.S. Oct. 10, 2014) (denying application for stay of Ninth Circuit’s judgment finding Idaho’s marriage exclusion laws unconstitutional)

Also, the Supreme Court itself has telegraphed its leanings. See Lawrence [v. Texas] 539 U.S. at 605 (Scalia, J., dissenting) (stating that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage); see also United States v. Windsor, 133 S. Ct. 2675, 2709 (2013) (Scalia, J., dissenting) (essentially stating that the majority opinion in Windsor makes a finding of unconstitutionality regarding state same-sex marriage bans "inevitable.")

The use of Scalia's dissenting opinions is yet another example of the Scalia's "petard" phenomenon.

Also interesting is Judge Bataillon's rejection of injury to Nebraska should there be a preliminary injunction: 

All but one of the plaintiff couples are married in a state that recognizes same-sex marriage. All of the couples have been in committed relationships for many years. Those that have resided in Nebraska have not caused damage to society at large or to the institution of marriage.

The preliminary injunction is effective March 9, at 8:00 am.  Nebraska is reportedly appealing and seeking an emergency stay.


March 2, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Gender, Interpretation, Opinion Analysis, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)