Monday, January 18, 2016

Daily Read: Taunya Banks on MLK and Education

On this Martin Luther King Day, the 2016 Presidential Proclamation  includes attention to the continuing quest for educational equality:

Today, we celebrate the long arc of progress for which Dr. King and so many other leaders fought to bend toward a brighter day.  It is our mission to fulfill his vision of a Nation devoted to rejecting bigotry in all its forms; to rising above cynicism and the belief that we cannot change; and to cherishing dignity and opportunity not only for our own daughters and sons, but also for our neighbors' children.

We have made great advances since Dr. King's time, yet injustice remains in many corners of our country.  In too many communities, the cycle of poverty persists and students attend schools without adequate resources -- some that serve as a pipeline to prison for young people of color.  Children still go to bed hungry, and the sick go without sufficient treatment in neighborhoods across America.  To put up blinders to these realities or to intimate that they are inherent to a Nation as large and diverse as ours would do a disservice to those who fought so hard to ensure ours was a country dedicated to the proposition that all people are created equal.

It's worth (re)reading Professor Taunya Lovell Banks' 2013 article, The Unfinished Journey - Education, Equality and Martin Luther King, Jr. Revisited, 58 Villanova Law Review 471, available on ssrn, arguing that educational equality includes economic equality. 

LAW-BanksDelivered as a MLK Day Lecture at Villanova, Professor Banks remarks have continued resonance as the United States Supreme Court deliberates Fisher II regarding affirmative action in higher education:

As our experience with Brown [v. Board of Education] has taught us, law is an imperfect vehicle for bringing about massive social change. In 1963, Dr. King, in his often quoted Letter from a Birmingham Jail, wrote about the “interrelatedness of all communities and states.” The same year he wrote in his book Strength to Love that: “True integration will be achieved by true neighbors who are willingly obedient to unenforceable obligations.” I contend that we as Americans have an unenforceable obligation to provide quality education for all of our children and not handicap some children so that others can become more competitive. We must do this by public will, not solely through law.
As I said earlier, our efforts to bring about educational equality should be multi-directional, and lawyers have a role to play. As part of this battle some lawyers and academics must recommit to convincing state courts to define more broadly their guarantees of a free public education. We must convince state courts that education is a fundamental right. Others must work with state legislatures to get them to commit, in words and funds, to the achievement of a twenty-first century notion of educational equality. More importantly, we all must work to get Americans throughout the nation to recommit to a strong public education system throughout the country.

[footnotes omitted; emphasis added]. 

 

January 18, 2016 in Current Affairs, Equal Protection, Federalism, Fundamental Rights, Race, Scholarship, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)

Saturday, January 16, 2016

United States Supreme Court Grants Certiorari in Free Exercise State Funding Case: Trinity Lutheran Church of Columbia, Mo.

The United States Supreme Court has granted certiorari in Trinity Lutheran Church of Columbia, Mo. v. Pauley regarding a Free Exercise and Equal Protection challenge to a denial of state funding that was based on a state constitutional provision prohibiting state funds be given to religious organizations. 

As the Eighth Circuit opinion ruling for the state, had phrased it, "Trinity Church seeks an unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church."  The Eighth Circuit relied in part on Locke v. Davey, 540 U.S. 712 (2004), in which "the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology."  For the Eighth Circuit, "while there is active academic and judicial debate about the breadth of the decision, we conclude that Locke" supported circuit precedent that foreclosed the challenge to the Missouri state constitutional provision.  

There are actually two Missouri constitutional provisions, Art. I §7 and Art. IX §8, which as the Eighth Circuit noted, are "not only more explicit but more restrictive than the Establishment Clause of the United States Constitution,” quoting a Missouri Supreme Court decision.  The provisions were initially adopted in 1870 and 1875, and re-adopted in the Missouri Constitution of 1945, the current constitution.  The first provision is the one at the heart of this dispute.  Placed in the state constitution's "Bill of Rights," Art. I §7 provides:

That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect, or creed of religion, or any form of religious faith or worship.

It was in reliance on this state constitutional provision that the state Department of Natural Resources denied the grant application of Trinity Lutheran Church for funds to purchase of recycled tires to resurface its preschool playground.  To supply such funds, the state officials decided, would violate the state constitution. 

Trinity Lutheran Church articulated the issue in its petition for certiorari as

Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.

It argues that the Eigth Circuit's decision was not "faithful" to Locke v. Davey because the playground resurfacing program was purely secular in nature, unlike in Locke.  But this might mean that the state constitutional provisions defining their own boundaries regarding "establishment" of religion are unconstitutional.

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image via

 

January 16, 2016 in Equal Protection, Federalism, First Amendment, Religion, Speech, Supreme Court (US) | Permalink | Comments (0)

Friday, January 8, 2016

Daily Read: The Late Judge Judith Kaye's Dissenting Opinion in New York's Same-Sex Marriage Challenge

In Memoriam:

Former Chief Judge of New York's highest court, the New York Court of Appeals, Judith Kaye.

Judith_S.KayeThe New York Times obituary notes the highlights of her amazing career, including her dissenting opinion in Hernandez v. Robles, the New York same-sex marriage case, in 2006.  Today's "Daily Read" reproduces that opinion, notable for its lucid reasoning as well as its excellent analytic structure.  It is in sharp contrast to the majority's opinion which became the subject of derisive comments, including most notably John Mitchell's  terrific send-up Chatting with the Lady in the Grocery Store about Hernandez V. Robles, the New York Same-Sex Marriage Case (available on srrn).

 

Here is Chief Judge Kaye's opinion in full:

 

Chief Judge Kaye (dissenting).

Plaintiffs (including petitioners) are 44 same-sex couples who wish to marry. They include a doctor, a police officer, a public school teacher, a nurse, an artist and a state legislator. Ranging in age from under 30 to 68, plaintiffs reflect a diversity of races, religions and ethnicities. They come from upstate and down, from rural, urban and suburban settings. Many have been together in committed relationships for decades, and many are raising children—from toddlers to teenagers. Many are active in their communities, serving on their local school board, for example, or their cooperative apartment building board. In short, plaintiffs represent a cross-section of New Yorkers who want only to live full lives, raise their children, better their communities and be good neighbors.

For most of us, leading a full life includes establishing a family. Indeed, most New Yorkers can look back on, or forward to, their wedding as among the most significant events of their lives. They, like plaintiffs, grew up hoping to find that one person with whom they would share their future, eager to express their mutual lifetime pledge through civil marriage. Solely because of their sexual orientation, however—that is, because of who they love—plaintiffs are denied the rights and responsibilities of civil marriage. This State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition.

  1. Due Process

Under both the state and federal constitutions, the right to due process of law protects certain fundamental liberty interests, including the right to marry. Central to the right to marry is the right to marry the person of one's choice (see e.g. Crosby v State of N.Y., Workers' Compensation Bd., 57 NY2d 305, 312 [1982] ["clearly falling within (the right of privacy) are matters relating to the decision of whom one will marry"]; People v Shepard, 50 NY2d 640, 644 [1980] ["the government has been prevented from interfering with an individual's decision about whom to marry"]). The deprivation of a fundamental right is subject to strict scrutiny and requires that the infringement be narrowly tailored to achieve a compelling state interest (see e.g. Carey v Population Services Int'l, 431 US 678, 686 [1977]).

Fundamental rights are those "which are, objectively, deeply rooted in this Nation's history and tradition . . . and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed" (Washington v Glucksberg, 521 US 702, 720-721 [1997] [internal quotation marks and citations omitted]). Again and again, the Supreme Court and this Court have made clear that the right to marry is fundamental (see e.g. Loving v Virginia, 388 US 1 [1967]; Zablocki v Redhail, 434 US 374 [1978]; Turner v Safley, 482 US 78 [1987]; Matter of Doe v Coughlin, 71 NY2d 48, 52 [1987]; Cooper v Morin, 49 NY2d 69, 80 [1979]; Levin v Yeshiva Univ., 96 NY2d 484, 500 [2001] [G.B. Smith, J., concurring] ["marriage is a fundamental constitutional right"]).

The Court concludes, however, that same-sex marriage is not deeply rooted in tradition, and thus cannot implicate any fundamental liberty. But fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights. Indeed, in recasting plaintiffs' invocation of their fundamental right to marry as a request for recognition of a "new" right to same-sex marriage, the Court misapprehends the nature of the liberty interest at stake. In Lawrence v Texas (539 US 558 [2003]), the Supreme Court warned against such error.

Lawrence overruled Bowers v Hardwick (478 US 186 [1986]), which had upheld a Georgia statute criminalizing sodomy. In so doing, the Lawrence court criticized Bowers for framing the issue presented too narrowly. Declaring that "Bowers was not correct when it was decided, and it is not correct today" (539 US at 578), Lawrence explained that Bowers purported to analyze—erroneously—whether the Constitution conferred a "fundamental right upon homosexuals to engage in sodomy" (539 US at 566 [citation omitted]). This was, however, the wrong question. The fundamental right at issue, properly framed, was the right to engage in private consensual sexual conduct—a right that applied to both homosexuals and heterosexuals alike. In narrowing the claimed liberty interest to embody the very exclusion being challenged, Bowers "disclose[d] the Court's own failure to appreciate the extent of the liberty at stake" (Lawrence, 539 US at 567).

The same failure is evident here. An asserted liberty interest is not to be characterized so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it (see Planned Parenthood of Southeastern Pa. v Casey, 505 US 833, 847 [1992] [it is "tempting . . . to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. . . . But such a view would be inconsistent with our law"]).

Notably, the result in Lawrence was not affected by the fact, acknowledged by the Court, that there had been no long history of tolerance for homosexuality. Rather, in holding that "[p]ersons in a homosexual relationship may seek autonomy for the[ ] purpose[ of making intimate and personal choices], just as heterosexual persons do" (539 US at 574), Lawrence rejected the notion that fundamental rights it had already identified could be restricted based on traditional assumptions about who should be permitted their protection. As the Court noted, "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, 539 US at 579; see also id. at 572 ["(h)istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry" (internal quotation marks and citation omitted)]; Cleburne v Cleburne Living Center, Inc., 473 US 432, 466 [1985] [Marshall, J., concurring in the judgment in part and dissenting in part] ["what once was a 'natural' and 'self-evident' ordering later comes to be seen as an artificial and invidious constraint on human potential and freedom"]).

Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.

Instead, the Supreme Court has repeatedly held that the fundamental right to marry must be afforded even to those who have previously been excluded from its scope—that is, to those whose exclusion from the right was "deeply rooted."[FN1]Well into the twentieth century, the sheer weight of precedent accepting the constitutionality of bans on interracial marriage was deemed sufficient justification in and of itself to perpetuate these discriminatory laws (see e.g. Jones v Lorenzen, 441 P2d 986, 989{**7 NY3d at 383} [Okla 1965] [upholding antimiscegenation law since the "great weight of authority holds such statutes constitutional"])—much as defendants now contend that same-sex couples should be prohibited from marrying because historically they always have been.

Just 10 years before Loving declared unconstitutional state laws banning marriage between persons of different races, 96% of Americans were opposed to interracial marriage (see brief of NAACP Legal Defense and Educational Fund, Inc., as amicus curiae in support of plaintiffs, at 5). Sadly, many of the arguments then raised in support of the antimiscegenation laws were identical to those made today in opposition to same-sex marriage (see e.g. Kinney v Commonwealth, 71 Va [30 Gratt] 858, 869 [1878] [marriage between the races is "unnatural" and a violation of God's will]; Pace v State, 69 Ala 231, 232 [1881] ["amalgamation" of the races would produce a "degraded civilization"]; see also Lonas v State, 50 Tenn [3 Heisk] 287, 310 [1871] ["(t)he laws of civilization demand that the races be kept apart"]).

To those who appealed to history as a basis for prohibiting interracial marriage, it was simply inconceivable that the right of interracial couples to marry could be deemed "fundamental." Incredible as it may seem today, during the lifetime of every Judge on this Court, interracial marriage was forbidden in at least a third of American jurisdictions. In 1948, New York was one of only 18 states in the nation that did not have such a ban. By 1967, when Loving was decided, 16 states still outlawed marriages between persons of different races. Nevertheless, even though it was the ban on interracial marriage—not interracial marriage itself—that had a long and shameful national tradition, the Supreme Court determined that interracial couples could not be deprived of their fundamental right to marry. [*21]

Unconstitutional infringements on the right to marry are not limited to impermissible racial restrictions. Inasmuch as the fundamental right to marry is shared by "all the State's citizens" (Loving, 388 US at 12), the State may not, for example, require individuals with child support obligations to obtain court approval before getting married (see Zablocki, 434 US 374 [1978]). Calling Loving the "leading decision of this Court on the right to marry," Justice Marshall made clear in Zablocki that Loving

"could have rested solely on the ground that the{**7 NY3d at 384} statutes discriminated on the basis of race in violation of the Equal Protection Clause. But the Court went on to hold that laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry. . . .

"Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals" (434 US at 383-384 [citation omitted]).

Similarly, in Turner (482 US 78 [1987]), the Supreme Court determined that the right to marry was so fundamental that it could not be denied to prison inmates (see also Boddie v Connecticut, 401 US 371 [1971] [state requirement that indigent individuals pay court fees to obtain divorce unconstitutionally burdened fundamental right to marry]).

Under our Constitution, discriminatory views about proper marriage partners can no more prevent same-sex couples from marrying than they could different-race couples. Nor can "deeply rooted" prejudices uphold the infringement of a fundamental right (see People v Onofre, 51 NY2d 476, 490 [1980] ["disapproval by a majority of the populace . . . may not substitute for the required demonstration of a valid basis for intrusion by the State in an area of important personal decision"]). For these reasons, the NAACP Legal Defense and Educational Fund, as amicus, contends that

"[a]lthough the historical experiences in this country of African Americans, on the one hand, and gay men and lesbians, on the other, are in many important ways quite different, the legal questions raised here and in Loving are analogous. The state law at issue here, like the law struck down in Loving, restricts an individual's right to marry the person of his or her choice. We respectfully submit that the decisions below must be reversed if this Court follows the reasoning of the United States Supreme Court's decision in Loving" (brief of NAACP Legal Defense and Educational Fund, Inc., as amicus curiae in support of plaintiffs, at 3-4; see also brief of New York County Lawyers' Association and National Black Justice Coalition, as amici curiae in support of plaintiffs [detailing history of antimiscegenation laws and public attitudes toward interracial marriage]).{**7 NY3d at 385}

It is no answer that same-sex couples can be excluded from marriage because "marriage," by definition, does not include them. In the end, "an argument that marriage is heterosexual because it 'just is' amounts to circular reasoning" (Halpern v Attorney Gen. of Can., 65 OR3d 161, 172 OAC 276, ¶ 71 [2003]). "To define the institution of marriage by the characteristics of those to whom it always has been accessible, in order to justify the exclusion of those to whom it never has been accessible, is conclusory and bypasses the core question we are asked to decide" (Goodridge v Department of Pub. Health, 440 Mass 309, 348, 798 NE2d 941, 972-973 [2003] [Greaney, J., concurring]). [*22]

The claim that marriage has always had a single and unalterable meaning is a plain distortion of history. In truth, the common understanding of "marriage" has changed dramatically over the centuries (see brief of Professors of History and Family Law, as amici curiae in support of plaintiffs). Until well into the nineteenth century, for example, marriage was defined by the doctrine of coverture, according to which the wife's legal identity was merged into that of her husband, whose property she became. A married woman, by definition, could not own property and could not enter into contracts.[FN2] Such was the very "meaning" of marriage. Only since the mid-twentieth century has the institution of marriage come to be understood as a relationship between two equal partners, founded upon shared intimacy and mutual financial and emotional support. Indeed, as amici professors note, "The historical record shows that, through adjudication and legislation, all of New York's sex-specific rules for marriage have been invalidated save for the one at issue here."

That restrictions on same-sex marriage are prevalent cannot in itself justify their retention. After all, widespread public opposition to interracial marriage in the years before Loving could not sustain the antimiscegenation laws. "[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice" (Lawrence, 539 US at 577-578 [internal quotation marks and citation omitted]; see also id. at 571 [fundamental right to engage in private consensual sexual conduct extends to homosexuals, notwithstanding that "for centuries there have been powerful voices to condemn homosexual{**7 NY3d at 386} conduct as immoral"]). The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it.

  1. Equal Protection

By virtue of their being denied entry into civil marriage, plaintiff couples are deprived of a number of statutory benefits and protections extended to married couples under New York law. Unlike married spouses, same-sex partners may be denied hospital visitation of their critically ill life partners. They must spend more of their joint income to obtain equivalent levels of health care coverage. They may, upon the death of their partners, find themselves at risk of losing the family home. The record is replete with examples of the hundreds of ways in which committed same-sex couples and their children are deprived of equal benefits under New York law. Same-sex families are, among other things, denied equal treatment with respect to intestacy, inheritance, tenancy by the entirety, taxes, insurance, health benefits, medical decisionmaking, workers' compensation, the right to sue for wrongful death and spousal privilege. Each of these statutory inequities, as well as the discriminatory exclusion of same-sex couples from the benefits and protections of civil marriage as a whole, violates their constitutional right to equal protection of the laws.

Correctly framed, the question before us is not whether the marriage statutes properly benefit those they are intended to benefit—any discriminatory classification does that—but whether there exists any legitimate basis for excluding those who are not covered by the law. [*23]That the language of the licensing statute does not expressly reference the implicit exclusion of same-sex couples is of no moment (see Domestic Relations Law § 13 ["persons intended to be married" must obtain a marriage license]). The Court has, properly, construed the statutory scheme as prohibiting same-sex marriage. That being so, the statute, in practical effect, becomes identical to—and, for purposes of equal protection analysis, must be analyzed as if it were—one explicitly providing that "civil marriage is hereby established for couples consisting of a man and a woman," or, synonymously, "marriage between persons of the same sex is prohibited."

On three independent grounds, this discriminatory classification is subject to heightened scrutiny, a test that defendants concede it cannot pass.{**7 NY3d at 387}

  1. Heightened Scrutiny
  2. Sexual Orientation Discrimination

Homosexuals meet the constitutional definition of a suspect class, that is, a group whose defining characteristic is "so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy—a view that those in the burdened class are not as worthy or deserving as others" (Cleburne, 473 US at 440). Accordingly, any classification discriminating on the basis of sexual orientation must be narrowly tailored to meet a compelling state interest (see e.g. Alevy v Downstate Med. Ctr. of State of N.Y., 39 NY2d 326, 332 [1976]; Matter of Aliessa v Novello, 96 NY2d 418, 431 [2001]).

"No single talisman can define those groups likely to be the target of classifications offensive to the Fourteenth Amendment and therefore warranting heightened or strict scrutiny" (Cleburne, 473 US at 472 n 24 [Marshall, J., concurring in the judgment in part and dissenting in part]). Rather, such scrutiny is to be applied when analyzing legislative classifications involving groups who "may well be the target of the sort of prejudiced, thoughtless, or stereotyped action that offends principles of equality found in" the Constitution (id. at 472).

Although no single factor is dispositive, the Supreme Court has generally looked to three criteria in determining whether a group subject to legislative classification must be considered "suspect." First, the Court has considered whether the group has historically been subjected to purposeful discrimination. Homosexuals plainly have been, as the Legislature expressly found when it recently enacted the Sexual Orientation Non-Discrimination Act (SONDA), barring discrimination against homosexuals in employment, housing, public accommodations, education, credit and the exercise of civil rights. Specifically, the Legislature found

"that many residents of this state have encountered prejudice on account of their sexual orientation, and that this prejudice has severely limited or actually prevented access to employment, housing and other basic necessities of life, leading to deprivation and suffering. The legislature further recognizes that this prejudice has fostered a general climate of hostility and distrust, leading in some instances to{**7 NY3d at 388} physical violence against those perceived to be homosexual or bisexual" (L 2002, ch 2, § 1; see also brief of Parents, Families & Friends of Lesbians and Gays, Inc., et al., as amici curiae in support of plaintiffs, at 22-49 [detailing history of state-sanctioned discrimination against gays and lesbians]).

[*24]

Second, the Court has considered whether the trait used to define the class is unrelated to the ability to perform and participate in society. When the State differentiates among its citizens "on the basis of stereotyped characteristics not truly indicative of their abilities" (Massachusetts Bd. of Retirement v Murgia, 427 US 307, 313 [1976]), the legislative classification must be closely scrutinized. Obviously, sexual orientation is irrelevant to one's ability to perform or contribute.

Third, the Court has taken into account the group's relative political powerlessness. Defendants contend that classifications based on sexual orientation should not be afforded heightened scrutiny because, they claim, homosexuals are sufficiently able to achieve protection from discrimination through the political process, as evidenced by the Legislature's passage of SONDA in 2002. SONDA, however, was first introduced in 1971. It failed repeatedly for 31 years, until it was finally enacted just four years ago. Further, during the Senate debate on the Hate Crimes Act of 2000, one Senator noted that "[i]t's no secret that for years we could have passed a hate-crimes bill if we were willing to take out gay people, if we were willing to take out sexual orientation" (New York State Senate Debate on Senate Bill S 4691-A, June 7, 2000, at 4609 [statement of Senator Schneiderman]; accord id. at 4548-4549 [statement of Senator Connor]). The simple fact is that New York has not enacted anything approaching comprehensive statewide domestic partnership protections for same-sex couples, much less marriage or even civil unions.

In any event, the Supreme Court has never suggested that racial or sexual classifications are not (or are no longer) subject to heightened scrutiny because of the passage of even comprehensive civil rights laws (see Cleburne, 473 US at 467 [Marshall, J., concurring in the judgment in part and dissenting in part]). Indeed, sex discrimination was first held to deserve heightened scrutiny in 1973—after passage of title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, federal laws prohibiting sex discrimination. Such measures acknowledge—rather {**7 NY3d at 389}than mark the end of—a history of purposeful discrimination (see Frontiero v Richardson, 411 US 677, 687-688 [1973] [citing antidiscrimination legislation to support conclusion that classifications based on sex merit heightened scrutiny]).

Nor is plaintiffs' claim legitimately answered by the argument that the licensing statute does not discriminate on the basis of sexual orientation since it permits homosexuals to marry persons of the opposite sex and forbids heterosexuals to marry persons of the same sex. The purported "right" of gays and lesbians to enter into marriages with different-sex partners to whom they have no innate attraction cannot possibly cure the constitutional violation actually at issue here. "The right to marry is the right of individuals, not of . . . groups" (Perez v Sharp, 32 Cal 2d 711, 716, 198 P2d 17, 20 [1948]). "Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains" (32 Cal 2d at 725, 198 P2d at 25). Limiting marriage to opposite-sex couples undeniably restricts gays and lesbians from marrying their chosen same-sex partners whom "to [them] may be irreplaceable" (id.)—and thus constitutes discrimination based on sexual orientation.[FN3]

[*25]2. Sex Discrimination

The exclusion of same-sex couples from civil marriage also discriminates on the basis of sex, which provides a further basis for requiring heightened scrutiny. Classifications based on sex must be substantially related to the achievement of important governmental objectives (see e.g. Craig v Boren, 429 US 190, 197 [1976]), and must have an "exceedingly persuasive justification" (Mississippi Univ. for Women v Hogan, 458 US 718, 724 [1982] [citations omitted]).

Under the Domestic Relations Law, a woman who seeks to marry another woman is prevented from doing so on account of her sex—that is, because she is not a man. If she were, she would be given a marriage license to marry that woman. That{**7 NY3d at 390} the statutory scheme applies equally to both sexes does not alter the conclusion that the classification here is based on sex. The "equal application" approach to equal protection analysis was expressly rejected by the Supreme Court in Loving: "[W]e reject the notion that the mere 'equal application' of a statute containing [discriminatory] classifications is enough to remove the classifications from the [constitutional] proscription of all invidious . . . discriminations" (388 US at 8). Instead, the Loving court held that "[t]here can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race [where the] statutes proscribe generally accepted conduct if engaged in by members of different races" (id. at 11; see also Johnson v California, 543 US 499, 506 [2005]; McLaughlin v Florida, 379 US 184, 191 [1964]; Anderson v Martin, 375 US 399, 403-404 [1964]; Shelley v Kraemer, 334 US 1, 21-22 [1948]; J. E. B. v Alabama ex rel. T. B., 511 US 127, 141-142 [1994] [government exercise of peremptory challenges on the basis of gender constitutes impermissible sex discrimination even though based on gender stereotyping of both men and women]).

  1. Fundamental Right

"Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests" (Lawrence, 539 US at 575). Because, as already discussed, the legislative classification here infringes on the exercise of the fundamental right to marry, the classification cannot be upheld unless it is necessary to the achievement of a compelling state interest (see Onofre, 51 NY2d at 492 n 6; Alevy, 39 NY2d at 332; Eisenstadt v Baird, 405 US 438, 447 n 7 [1972]). "[C]ritical examination of the state interests advanced in support of the classification is required" (Zablocki, 434 US at 383 [internal quotation marks and citations omitted]). And if "the means selected by the State for achieving" even "legitimate and substantial interests" unnecessarily impinge on the right to marry, the statutory distinction "cannot be sustained" (id. at 388).

  1. Rational-Basis Analysis

Although the classification challenged here should be analyzed using heightened scrutiny, it does not satisfy even rational-basis review, which requires that the classification "rationally further{**7 NY3d at 391} a legitimate state interest" (Affronti v Crosson, 95 NY2d 713, 718 [2001], cert [*26]denied sub nom. Affronti v Lippman, 534 US 826 [2001]). Rational-basis review requires both the existence of a legitimate interest and that the classification rationally advance that interest. Although a number of interests have been proffered in support of the challenged classification at issue, none is rationally furthered by the exclusion of same-sex couples from marriage. Some fail even to meet the threshold test of legitimacy.

Properly analyzed, equal protection requires that it be the legislated distinction that furthers a legitimate state interest, not the discriminatory law itself (see e.g. Cooper, 49 NY2d at 78; Romer v Evans, 517 US 620, 633 [1996]). Were it otherwise, an irrational or invidious exclusion of a particular group would be permitted so long as there was an identifiable group that benefitted from the challenged legislation. In other words, it is not enough that the State have a legitimate interest in recognizing or supporting opposite-sex marriages. The relevant question here is whether there exists a rational basis for excluding same-sex couples from marriage, and, in fact, whether the State's interests in recognizing or supporting opposite-sex marriages are rationally furthered by the exclusion.

  1. Children

Defendants primarily assert an interest in encouraging procreation within marriage. But while encouraging opposite-sex couples to marry before they have children is certainly a legitimate interest of the State, the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone.

Nor does this exclusion rationally further the State's legitimate interest in encouraging heterosexual married couples to procreate. Plainly, the ability or desire to procreate is not a prerequisite for marriage. The elderly are permitted to marry, and many same-sex couples do indeed have children. Thus, the statutory classification here—which prohibits only same-sex couples, and no one else, from marrying—is so grossly underinclusive and overinclusive as to make the asserted rationale in promoting procreation "impossible to credit" (Romer, 517 US at 635).[FN4] Indeed, even the Lawrence dissenters observed that "encouragement of procreation" could not "possibly" be a justification for {**7 NY3d at 392}denying marriage to gay and lesbian couples, "since the sterile and the elderly are allowed to marry" (539 US at 605 [Scalia, J., dissenting]; see also Lapides v Lapides, 254 NY 73, 80 [1930] ["inability to bear children" does not justify an annulment under the Domestic Relations Law]).

Of course, there are many ways in which the government could rationally promote procreation—for example, by giving tax breaks to couples who have children, subsidizing child care for those couples, or mandating generous family leave for parents. Any of these benefits—and many more—might convince people who would not otherwise have children [*27]to do so. But no one rationally decides to have children because gays and lesbians are excluded from marriage.

In holding that prison inmates have a fundamental right to marry—even though they cannot procreate—the Supreme Court has made it clear that procreation is not the sine qua non of marriage. "Many important attributes of marriage remain . . . after taking into account the limitations imposed by prison life. . . . [I]nmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship" (Turner, 482 US at 95-96). Nor is there any conceivable rational basis for allowing prison inmates to marry, but not homosexuals. It is, of course, no answer that inmates could potentially procreate once they are released—that is, once they are no longer prisoners—since, as nonprisoners, they would then undeniably have a right to marry even in the absence of Turner.

Marriage is about much more than producing children, yet same-sex couples are excluded from the entire spectrum of protections that come with civil marriage—purportedly to encourage other people to procreate. Indeed, the protections that the State gives to couples who do marry—such as the right to own property as a unit or to make medical decisions for each other—are focused largely on the adult relationship, rather than on the couple's possible role as parents. Nor does the{**7 NY3d at 393} plurality even attempt to explain how offering only heterosexuals the right to visit a sick loved one in the hospital, for example, conceivably furthers the State's interest in encouraging opposite-sex couples to have children, or indeed how excluding same-sex couples from each of the specific legal benefits of civil marriage—even apart from the totality of marriage itself—does not independently violate plaintiffs' rights to equal protection of the laws. The breadth of protections that the marriage laws make unavailable to gays and lesbians is "so far removed" from the State's asserted goal of promoting procreation that the justification is, again, "impossible to credit" (Romer, 517 US at 635).

The State plainly has a legitimate interest in the welfare of children, but excluding same-sex couples from marriage in no way furthers this interest. In fact, it undermines it. Civil marriage provides tangible legal protections and economic benefits to married couples and their children, and tens of thousands of children are currently being raised by same-sex couples in New York. Depriving these children of the benefits and protections available to the children of opposite-sex couples is antithetical to their welfare, as defendants do not dispute (see e.g. Baker v State, 170 Vt 194, 219, 744 A2d 864, 882 [1999] ["(i)f anything, the exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against"]; cf. Matter of Jacob, 86 NY2d 651, 656 [1995] ["(t)o rule otherwise would mean that the thousands of New York children actually being raised in homes headed by two unmarried persons could have only one legal parent, not the two who want them"]). The State's interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender of the spouses.

Nor may the State legitimately seek either to promote heterosexual parents over homosexual parents, as the plurality posits, or to discourage same-sex parenting. First, granting such a preference to heterosexuals would be an acknowledgment of purposeful discrimination against homosexuals, thus constituting a flagrant equal protection violation. Second, such a preference would be contrary to the stated public policy of New York, and therefore irrational (see 18 NYCRR 421.16 [h] [2] [applicants to be adoptive parents "shall not be rejected solely on the basis of homosexuality"]; see also Jacob, 86 NY2d at 668 [same-sex partner of a legal parent may adopt that parent's child; "(a)ny proffered justification for rejecting (adoptions) based on a governmental policy disapproving of homosexuality or encouraging marriage would not apply"]; brief of American Psychological Association et al., as amici curiae in support of plaintiffs, at 34-43 [collecting the results of social scientific research studies which conclude that children raised by same-sex parents fare no differently from, and do as well as, those raised by opposite-sex parents in terms of the quality of the parent-child relationship and the mental health, development and social adjustment of the child]; brief of Association to Benefit Children et al., as amici curiae in support of plaintiffs, at 31-35 [same conclusion]).[FN5]

  1. Moral Disapproval

The government cannot legitimately justify discrimination against one group of persons as a mere desire to preference another group (see Metropolitan Life Ins. Co. v Ward, 470 US 869, 882 and n 10 [1985]). Further, the Supreme Court has held that classifications "drawn for the purpose of disadvantaging the group burdened by the law" can never be legitimate (Romer, 517 US at 633), and that "a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest" (Department of Agriculture v Moreno, 413 US 528, 534 [1973]; see also Onofre, 51 NY2d at 490 ["disapproval by a majority of the populace . . . may not substitute for the required demonstration of a valid basis for intrusion by the State in an area of important personal decision"]; Palmore v Sidoti, 466 US 429, 433 [1984] ["(p)rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect"]; Lawrence, 539 US at 571 [no legitimate basis to penalize gay and lesbian relationships notwithstanding that "for centuries there have been powerful voices to condemn homosexual conduct as immoral"]; id. at 583 [O'Connor, J., concurring in the judgment] ["(m)oral disapproval" of homosexuals cannot be a legitimate state interest]).

  1. Tradition

That civil marriage has traditionally excluded same-sex couples—i.e., that the "historic and cultural understanding of marriage" has been between a man and a woman—cannot in itself provide a rational basis for the challenged exclusion. To say that discrimination is "traditional" is to say only that the discrimination has existed for a long time. A classification, however, cannot be maintained merely "for its own sake" (Romer, 517 US at 635). Instead, the classification (here, the exclusion of gay men and lesbians from civil marriage) must advance a state interest that is separate from the classification itself (see Romer, 517 US at 633, 635). Because the "tradition" of excluding gay men and lesbians from civil marriage is no different from the classification itself, the exclusion cannot be justified on the basis of "history." Indeed, the justification of "tradition" does not explain the classification; it merely repeats it. Simply put, a history or tradition of discrimination—no matter how entrenched—does not make the discrimination constitutional (see also Goodridge, 440 Mass at 332 n 23, 798 NE2d at 961 n 23 ["it is circular reasoning, not analysis, to maintain that marriage must remain a heterosexual institution because that is what it historically has been"]).[FN6]

  1. Uniformity

The State asserts an interest in maintaining uniformity with the marriage laws of other states. But our marriage laws currently are not uniform with those of other states. For example, New York—unlike most other states in the nation—permits first cousins to marry (see Domestic Relations Law § 5). This disparity has caused no trouble, however, because well-settled principles of comity resolve any conflicts. The same well-settled principles of comity would resolve any conflicts arising from any disparity involving the recognition of same-sex marriages.

It is, additionally, already impossible to maintain uniformity among all the states, inasmuch as Massachusetts has now legalized same-sex marriage. Indeed, of the seven jurisdictions that border New York State, only Pennsylvania currently affords no legal status to same-sex relationships. Massachusetts, Ontario and Quebec all authorize same-sex marriage; Vermont and Connecticut provide for civil unions (see Vt Stat Ann, tit 15, § 1204 [a]; Conn Gen Stat § 46b-38nn); and New Jersey has a statewide domestic partnership law (see NJ Stat Ann § 26:8A-1 et seq.). Moreover, insofar as a number of localities within New York offer domestic partnership registration, even the law within the state is not uniform. Finally, and most fundamentally, to justify the exclusion of gay men and lesbians from civil marriage because "others do it too" is no more a justification for the discriminatory classification than the contention that the discrimination is rational because it has existed for a long time. As history has well taught us, separate is inherently unequal.

III. The Legislature

The Court ultimately concludes that the issue of same-sex marriage should be addressed by the Legislature. If the Legislature were to amend the statutory scheme by making it gender neutral, obviously the instant controversy would disappear. But this Court cannot avoid its obligation to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic. After all, by the time the Court decided Loving in 1967, many states had already repealed their antimiscegenation laws. Despite this trend, however, the Supreme Court did not refrain from fulfilling its constitutional obligation.

The fact remains that although a number of bills to authorize same-sex marriage have been introduced in the Legislature over the past several years, none has ever made it out of committee (see 2005 NY Senate-Assembly Bill S 5156, A 7463; 2005 NY Assembly Bill A 1823; 2003 NY Senate Bill S 3816; 2003 NY Assembly Bill A 7392; 2001 NY Senate Bill S 1205; see also 2005 NY Senate-Assembly Bill S 1887-A, A 3693-A [proposing establishment of domestic partnerships]; 2004 NY Senate-Assembly Bill S 3393-A, A 7304-A [same]).

It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation. The Court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy.

I am confident that future generations will look back on today's decision as an unfortunate misstep

footnotes:

Footnote 1: In other contexts, this Court has also recognized that due process rights must be afforded to all, even as against a history of exclusion of one group or another from past exercise of these rights (see e.g. Matter of Raquel Marie X., 76 NY2d 387, 397 [1990] [affording the right to custody of one's children to unwed fathers, despite a long history of excluding unwed fathers from that right]; Rivers v Katz, 67 NY2d 485, 495-496 [1986] [affording the right to refuse medical treatment to the mentally disabled, despite a long history of excluding the mentally ill from that right]).
Footnote 2: Moreover, until as recently as 1984, a husband could not be prosecuted for raping his wife (see People v Liberta, 64 NY2d 152 [1984]).
Footnote 3: Indeed, the true nature and extent of the discrimination suffered by gays and lesbians in this regard is perhaps best illustrated by the simple truth that each one of the plaintiffs here could lawfully enter into a marriage of convenience with a complete stranger of the opposite sex tomorrow, and thereby immediately obtain all of the myriad benefits and protections incident to marriage. Plaintiffs are, however, denied these rights because they each desire instead to marry the person they love and with whom they have created their family.
Footnote 4: Although the plurality asserts that the Legislature could not possibly exclude from marriage opposite-sex couples unable to have children because to do so would require "grossly intrusive inquiries" (plurality op at 365), no explanation is given as to why the Legislature could not easily remedy the irrationality inherent in allowing all childless couples to marry—if, as the plurality believes, the sole purpose of marriage is procreation—by simply barring from civil marriage all couples in which both spouses are older than, say, 55. In that event, the State would have no need to undertake intrusive inquiries of any kind.
Footnote 5: Nor could the State have a legitimate interest in privileging some children over others depending on the manner in which they were conceived or whether or not their parents were married (see Jacob, 86 NY2d at 667 [depriving children of legal relationship with de facto parents "based solely on their biological mother's sexual orientation or marital status . . . raise(s) constitutional concerns"]; Levy v Louisiana, 391 US 68, 71 [1968] [child born out of wedlock may not be denied rights enjoyed by other citizens]).
Footnote 6: Ultimately, as the Lawrence dissenters recognized, " 'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples" (539 US at 601 [Scalia, J., dissenting]), an illegitimate basis for depriving gay and lesbian couples of the equal protection of the laws.


January 8, 2016 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fundamental Rights, Gender, News, Recent Cases, Reconstruction Era Amendments, Sexual Orientation | Permalink | Comments (0)

Thursday, January 7, 2016

Daily Read: Attorneys, Abortions, and the Amicus Brief in Whole Women's Health

The amicus brief of Anice MacAvoy, Janie Schulman, and Over 110 Other Women in the Legal Profession Who Have Exercised their Constitutional Right to an Abortion filed in Whole Woman's Health v. Cole, the abortion case before the United States Supreme Court regarding Texas's controversial HB2 statute, puts the emotions and stories of legal professionals whose abortions have played a positive role in their lives and careers.

Although the amicus does not cite the Court's most recent abortion decision, Gonzales v. Carhart (Carhart II), the import of the amicus is a challenge to some of the reasoning in that case.  Specifically, Justice Kennedy writing for the majority in Carhart II stated that:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. Casey, supra, at 852–853 (opinion of the Court). While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05–380, pp. 22–24. Severe depression and loss of esteem can follow. See ibid.

The dissenting opinion of four Justices, authored by Justice Ginsburg, responded to this passage at length:

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Ante, at 29. Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. Ante, at 28–29. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.

 

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Myra Bradwell, attorney, circa 1870

This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited. Compare, e.g., Muller v. Oregon, 208 U. S. 412, 422–423 (1908) (“protective” legislation imposing hours-of-work limitations on women only held permissible in view of women’s “physical structure and a proper discharge of her maternal funct[ion]”); Bradwell v. State, 16Wall. 130, 141 (1873) (Bradley, J., concurring) (“Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. … The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother.”), with United States v. Virginia, 518 U. S. 515 , n. 12 (1996) (State may not rely on “overbroad generalizations” about the “talents, capacities, or preferences” of women; “[s]uch judgments have … impeded … women’s progress toward full citizenship stature throughout our Nation’s history”); Califano v. Goldfarb, 430 U. S. 199, 207 (1977) (gender-based Social Security classification rejected because it rested on “archaic and overbroad generalizations” “such as assumptions as to [women’s] dependency” (internal quotation marks omitted)).

Though today’s majority may regard women’s feelings on the matter as “self-evident,” ante, at 29, this Court has repeatedly confirmed that “[t]he destiny of the woman must be shaped … on her own conception of her spiritual imperatives and her place in society.” Casey, 505 U. S., at 852. See also id., at 877 (plurality opinion) (“[M]eans chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”); supra, at 3–4.

[footnotes omitted].

The brief of the attorneys who have had abortions and are legal professionals clearly supports the view that women must be able to exercise reproductive free choice.  The stories of the women attorneys gathered in the amicus brief is a testament to the positive aspects of abortions - - - rather than the regrets - - - that women attorneys have experienced. 

 

 

 

 


January 7, 2016 in Abortion, Courts and Judging, Current Affairs, Equal Protection, Family, Fourteenth Amendment, Gender, Medical Decisions, Privacy, Recent Cases, Reproductive Rights, Scholarship | Permalink | Comments (0)

Wednesday, January 6, 2016

Alabama's CJ Roy Moore Issues Administrative Order on Same-Sex Marriage

Despite the United States Supreme Court's holding last Term in Obergefell v. Hodges holding that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples, the controversial Chief Judge of the Alabama Supreme Court Roy Moore issued an " Adminstrative Order" forbidding probate judges from issuing same-sex marriage licenses "contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act" since those laws "remain in full force and effect."

Alabama5Today's administrative opinion is part of Moore's ongoing reaction to constitutional issues surrounding same-sex marriage.  After an Alabama federal judge issued an opinion finding the denial of same-sex marriage unconstitutional, Judge Moore argued that the Alabama was not bound by the federal courts on the same-sex marriage issue.  Recall that the United States Supreme Court declined to stay the federal judge's judgment.  Despite these direct orders, seemingly Moore's current argument in today's Administrative Order is that Obergfell does not apply to Alabama but only the states involved in the Sixth Circuit opinion to which the Court granted certiorari.

Judge Moore's "interesting" construction of constitutional law is not limited to the precedential value of United States Supreme Court opinions.  Several months ago - - - in a lesbian second-parent adoption case, E.L. - - - the Alabama Supreme held that Alabama need not accord full faith and credit to a Georgia decision because of a dissenting opinion. The United States Supreme Court stayed the decision in E.L. pending a decision on the petition for certiorari.

 

 

January 6, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Fundamental Rights, Jurisdiction of Federal Courts, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (0)

Tuesday, November 24, 2015

ACLU Sues to Force Indiana to Take Syrian Refugees

The Indiana ACLU filed suit late yesterday in federal court seeking to force Indiana to take Syrian refugees. The lawsuit argues that Governor Mike Pence's action halting state aid to refugee resettlement efforts is preempted by federal law and violates equal protection and Title VI of the Civil Rights Act of 1964.

The case started when Indiana Governor Mike Pence said that his state would not accept Syrian refugees after the Paris attacks, and ordered state agencies not to provide assistance for resettlement efforts. Indiana then turned away a Syrian family (that was subsequently placed in Connecticut).

The ACLU sued on behalf of Exodus Refugee Immigration, Inc., a private non-profit that provides nuts-and-bolts assistance to refugee families in the state. Exodus claims it incurred costs in anticipation of the federal government accepting 10,000 Syrian refugees, some of whom would come to Indiana, but did not receive reimbursement from the state (as it usually would) after Governor Pence ordered state agencies to stop supporting Syrian refugee resettlement.

The complaint argues that the INA preempts Governor Pence's order. It recognizes that the INA requires the federal government to "take into account recommendations of the State," among other considerations and to the extent possible, but correctly says that "[t]he INA does not allow a State to veto placement of a refugee within the State . . . ." In short:

Defendants' suspension of the resettlement of Syrian refugees in Indiana is preempted by the Constitution and federal law for multiple reasons, including that it impinges on the exclusively federal authority to regulate immigration and to classify non-citizens; that federal law occupies the field of refugee admission and resettlement; and that it conflicts with the Immigration and Nationality Act and other federal statutes.

The plaintiffs also argue that Governor Pence's order violates equal protection and Title VI.

Indiana is one of 31 states that have "refused" to accept Syrian refugees after the Paris attacks. (The quotes are because states don't have this authority.) But this appears to be the first federal lawsuit against a governor's order to halt state support for resettlement.

November 24, 2015 in Cases and Case Materials, Equal Protection, Federalism, News, Preemption | Permalink | Comments (0)

Wednesday, November 18, 2015

Federal Judge Finds Transgender Status a Fundamental Privacy Right

In an opinion denying a motion to dismiss in Love v. Johnson, United States District Judge for the Eastern District of Michigan Nancy Edmunds has concluded there is a fundamental privacy right in one's transgender status under the Fourteenth Amendment's Due Process Clause.  The constitutional challenge is to Michigan's policy for changing the sex designation on state-issued identification, including drivers licenses.  Under the policy, the only document that is accepted as a proof of sex designation is a certified birth certificate.   Thus, transgendered individuals would need an amended certified birth certificate - - - for which the procurement process is described as "onerous" - - - and could not use passports, which are specifically excluded by the Michigan policy.

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sample Michigan driver license via

In finding a fundamental right, the judge considered Sixth Circuit precedent that there were two types of fundamental rights protected “by the right to privacy that is rooted in substantive due process”:  the interest in “independence in making certain kinds of important decisions,” and the “interest in avoiding disclosure of personal matters.”  The court found that the latter - - - the "informational privacy" interest - - - was implicated.  This right must not only relate to a "fundamental liberty interest" but must satisfy either of two conditions: "the release of personal information could lead to bodily harm" or "the information released was of a sexual, personal, and humiliating nature."  The judge found that both 'the potential for harm' and 'the personal nature' conditions were satisfied.  The judge rejected the State's argument that the plaintiffs had not satisfied the harm prong because they had not shown sufficiently specific danger to themselves; it recognized "hostility and intolerance" and cited supporting Second Circuit caselaw.

The judge then applied strict scrutiny, writing that when

state action infringes upon a fundamental right, “such action will be upheld under the substantive due process component of the Fourteenth Amendment only where the governmental action furthers a compelling state interest, and is narrowly drawn to further that state interest.”  Defendant vaguely identifies two purported interests–albeit not in the context of a fundamental right–in support of the Policy: (1) “maintaining accurate state identification documents” to “promote effective law enforcement” and, (2) ensuring “that the information on the license is consistent with other state records describing the individual.”

[citations and footnote omitted].   The judge found that the means chosen - - - the restrictive policy - - - bears "little, if any, connection" to the "purported interests."  The judge considered two facts especially salient.  First, the Michigan policy applied only to those wishing to change the sex designation on a drivers license, not to procure an original drivers license (in which case a passport would be acceptable identification).  Second,  Michigan's policy was especially restrictive: the majority of other states, as well as the federal government, did not require a certified birth certificate and thus the judge stated she was "unable to conclude at this juncture that the Policy narrowly serves the state’s interest in maintaining “accurate” identification documents or promoting effective law enforcement."

While the complaint raised other constitutional claims, including an equal protection claim, the judge found the motion to dismiss need not be considered as to those claims given the conclusion that there is a valid substantive due process claim which will move forward.

 

November 18, 2015 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexuality | Permalink | Comments (1)

Tuesday, November 17, 2015

Federal Judge Applies Intermediate Scrutiny in Transgender Equal Protection Claim

Considering a complaint regarding an arrest during the 2011 Occupy Wall Street protests, United States District Judge Jed Rakoff has allowed the Equal Protection Clause claim to proceed in his opinion  in Adkins v. City of New York.

 The judge based his opinion on the Second Circuit's 2012 decision in United States v. Windsor (affirmed on other grounds by the United States Supreme Court):

[The Second Circuit in] Windsor held that gay people were a quasi-suspect class on the basis of four factors: gay people have suffered a history of persecution; sexual orientation has no relation to ability to contribute to society; gay people are a discernible group; and gay people remain politically weakened. While transgender people and gay people are not identical, they are similarly situated with respect to each of Windsor’s four factors.

OccupyJudge Rakoff then applied each of the factors (derived from Carolene Products' footnote four) to hold that transgender people are a quasi-suspect class.  Indeed, Judge Rakoff decides that in each of the factors, transgender people more easily meet the factor than "gay people" did at the time of the Second Circuit's decision in Windsor.  For example, on the political weakness factor, Judge Rakoff reasoned:

Fourth, transgender people are a politically powerless minority. “The question is whether they have the strength to politically protect themselves from wrongful discrimination.” Windsor, 699 F.3d at 184. Particularly in comparison to gay people at the time of Windsor, transgender people lack the political strength to protect themselves. For example, transgender people cannot serve openly in the military, see Department of Defense Instruction 6130.03 at 48 (incorporating changes as of September 13, 2011), as gay people could when Windsor was decided. See Don’t Ask, Don’t Tell Repeal Act of 2010, Pub.L. No. 111–321, 124 Stat. 3515. Moreover, like gay people, it is difficult to assess the degree of underrepresentation of transgender people in positions of authority without knowing their number relative to the cisgender population. However, in at least one way this underrepresentation inquiry is easier with respect to transgender people: for, although there are and were gay members of the United States Congress (since Windsor, in both houses), as well as gay federal judges, there is no indication that there have ever been any transgender members of the United States Congress or the federal judiciary.

In applying intermediate scrutiny, the judge rejected the government's argument that there was an important safety interest by concluding that there were no actual safety concerns according to the allegations of the complaint (taken as true in the procedural posture of the motion to dismiss).  Judge Rakoff continued:

Moreover, defendants cannot argue their actions were substantially related to ensuring plaintiff’s safety when they removed him from an allegedly safe place and caused him injury, albeit minimal injury, by handcuffing him to a wall next to the sole bathroom in the precinct.

The judge found that the individual defendants were entitled to qualified immunity, especially given that the Second Circuit's decision in Windsor occurred after the October 2011 Occupy Wall Street protest.  However, the judge found that the City of New York could be held liable under a specific pattern on conduct in the unequal treatment of transgender persons.

Thus, the case moves to settlement as so many of the Occupy arrest cases have done - - - unless New York City chooses to appeal the decision that transgendered individuals merit intermediate scrutiny under the Fourteenth Amendment's Equal Protection Clause.

[image via]

November 17, 2015 in Equal Protection, Fourteenth Amendment, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1)

Tuesday, November 10, 2015

Daily Read: SALT Amicus Brief in Fisher v. UT (II)

As the oral argument scheduled for December 9  for Fisher II approaches, organizations and individuals are filing amicus briefs for the Court's consideration.  SALT - - - the Society of American Law Teachers - - - a progressive organization of law faculty that has long fought for diversity in legal education, has predictably filed an amicus brief supporting University of Texas's admissions program. 

Logo-saltOne of the more interesting aspects of the brief is its argument that race neutrality is essentially impossible: "race-blind holistic review is not only a contradiction in terms, it is infeasible."  As the brief argues, "Put simply, because peoples’ lives are not “color blind,” neither can a holistic admissions policy be."

Consider a college application from an individual who lists youth leadership in his or her African Methodist Episcopal Church as an activity. Or consider an application from a first-generation Latina high-school senior whose personal essay discusses her immigrant parents’ experiences and how she learned to thrive in an English-dominated culture even though Spanish is the language spoken at home. If the reader is to conduct holistic review but cannot consider race, the reader is confronted with uncomfortable choices about how to handle these applications.

Moreover, if the reader cannot consider race, the reader would be confronted with an impossible task, because race affects assessments of individuals consciously or unconsciously, regardless of intentions and any mandate from this Court. . . .

Just as Dostoevsky’s polar bear will occupy the mind of anyone challenged not to think about it, so too will the admonition not to think about race generate an unspoken preoccupation with that subject.

 Although the SALT amicus brief does not argue that race will then be only used negatively, that is perhaps a consequence of an elimination of racialized diversity as a positive value.

 

November 10, 2015 in Affirmative Action, Equal Protection, Race, Scholarship | Permalink | Comments (0)

Monday, November 2, 2015

Court Hears Oral Arguments in Batson Challenge to Death Sentence

The Court heard oral arguments today in Foster v. Humphrey regarding a challenge to a 1987 conviction and death sentence by an all-white Georgia jury based on  Batson v. Kentucky (1986) applying equal protection principles to peremptory challenges in jury selection.

A seemingly new issue on the case involved whether or not the United States Supreme Court should be hearing the case at all.  While the Court granted certiorari to the Georgia Supreme Court (as we discussed and as the petition requested), the problem is that the Georgia Supreme Court had denied review . . . . for reasons that are unclear.  Was it discretionary? Was that discretion bounded?  Did the Georgia Supreme Court's denial of review for lack of a meritorous claim constitute a decision on the merits?  And even more complexly, did the Georgia state courts have an adequate and independent state ground - - - res judicata - - - under Michigan v. Long (1983)?  (Beth Burton, the attorney for Georgia seemed to concede this was not the case.)  And to add yet another layer of complexity, even if the United States Supreme Court decided it should review the matter, what exactly should it review? As Chief Justice Roberts asked, "In other words, are we addressing just whether there's arguable merit to the claim or are we addressing the claim on its own merits?"

On the merits of the Batson claim, the problem arises from the "smoking gun" of prosecutorial notes singling out the Black potential jurors in the case.  Although Steve Bright, attorney for Foster suggested that there was "an arsenal of smoking guns" here, Justice Scalia suggested that Foster had to "establish [in order ] to reverse the Georgia courts is that the new smoking gun, assuming that all the rest were not enough to demonstrate a Batson violation ­­ the new smoking guns would tip the scale."  Justice Kagan seemed to see it differently, suggesting to Beth Burton, the Georgia Deputy Attorney, that this was a clear Batson violation:

You have a lot of new information here from these files that suggests that what the prosecutors were doing was looking at the African-­American prospective jurors as a group, that they had basically said, we don't want any of these people.  Here is the one we want if we really have to take one.  But that there ­­ all the evidence suggests a kind of singling out, which is the very antithesis of the Batson rule.

Burton initially suggested that the prosecutors' notes highlighting Black jurors was that the prosecutor was preparing for a Batson challenge.  Justice Breyer expressed some incredulity at this based on the fact that prosecutors never previously advanced such a reason.  Justice Breyer also seemingly expressed incredulity at the prosecutors' argument that there were "40 different reasons" - - - other than race - - - meant that one was truly valid, rather than drawing an inference from the sheer number of reasons that they were invalid. 

Justice Kennedy, perhaps the decisive vote, seemed convinced the prosecutors committed a Batson violation: "They've ­­ - - - they've made a mistake - - - ­­ they've made a mistake of - - -­­ in Batson."  But Justice Kennedy was also quite vocal in pressing the attorneys on the procedural issue, which could be an escape hatch for the Court in what could prove to be a difficult case.

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November 2, 2015 in Courts and Judging, Criminal Procedure, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Race, Supreme Court (US) | Permalink | Comments (0)

Thursday, October 29, 2015

En Banc Sixth Circuit Rejects "Heckler's Veto" in "Bible Believers" Protest at Arab-American Festival

The en banc Sixth Circuit's opinion in Bible Believers v. Wayne County clearly rejected the existence of a "heckler's veto" to inflammatory but protected speech under the First Amendment's speech clause, as well as finding the speech protected under the Free Exercise Clause and the Equal Protection Clause of the Fourteenth Amendment.  The en banc court also found that the government was liable and that there was no qualified immunity.

Recall that last year a panel of the Sixth Circuit rejected the constitutional challenges of the Bible Believers group, affirming the district judge's grant of summary judgment for the government.

The underlying controversy arose when a group known as the "Bible Believers," Evangelical Christians, came to the Arab International festival on the streets of Dearborn, Michigan - - - as they had done the year before - - - to "preach."  Their speech included "strongly worded" slogans on signs, t-shirts, and banners (e.g., "Islam Is A Religion of Blood and Murder"),  a "severed pig's head

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Repin, Demontsration 1905, via

on a stick" (intended to protect the Bible Believers by repelling observers who feared it), statements through a megaphone castigating the following of a "pedophile prophet" and warning of "God's impending judgment."  A crowd gathered, seemingly mostly of children and adolescents, who yelled back and threw items at the preachers.  A law enforcement asked the Bible Believers to leave, and - when pressed - saying they would be cited for disorderly conduct. They were eventually escorted out.

The Sixth Circuit's extensive en banc opinion, authored by Judge Eric Clay - - - and in which 8 (including Clay) of the 15 Sixth Circuit judges joined - - - resolutely "confirms" the free speech protections that should be accorded to a speaker even when "angry, hostile, or violent crowds" seek to silence that speaker. 

The opinion first finds that the Bible Believers' speech was protected, rejecting exception of incitement (to riot) and fighting words.  The "fighting words" discussion is regrettably short - - - a single paragraph - - - and summarily advances the "objective standard" requiring the insult to be likely to provoke the "average person" (emphasis in original) and moreover to be directed at an "individual."  In the context of the facts here, these principles deserved further exploration.

After a brief discussion of the public forum, the en banc opinion then discussed at length the "heckler's veto" doctrine and concluded it was not a viable doctrine.  Applying that conclusion, the opinion discussed law enforcement performance, citing the video record (which the court did at several points in the opinion): there was "next to no attempt made by the officers to protect the Bible Believers or prevent the lawless actions of the audience" and  it was not sufficient an effort "to maintain peace among a group of rowdy youths" - - - i.e., the crowd at the festival - - - if it consists of  a"few verbal warnings and a single arrest.  The court advised:

We do not presume to dictate to law enforcement precisely how it should maintain the public order. But in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker: e.g., increasing police presence in the immediate vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or threatening to arrest more of the law breakers, as was also requested; or allowing the Bible Believers to speak from the already constructed barricade to which they were eventually secluded prior to being ejected from the Festival. If none of these measures were feasible or had been deemed unlikely to prevail, the WCSO [Wayne County Sheriff's Office] officers could have called for backup—as they appear to have done when they decided to eject the Bible Believers from the Festival—prior to finding that it was necessary to infringe on the group’s First Amendment rights. We simply cannot accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.

In a very brief analysis, the court held that the free exercise claim "succeeds on the same basis as the free speech claim."  As for the Equal Protection Clause claim, the court's discussion is similarly summary, but its analysis seems much too conclusory:

The Festival included a number of other religious organizations that came to share their faith by spreading a particular message. There are several distinctions between the Bible Believers and these other groups. Mainly, the Bible Believers chose, as was their right, not to register for an assigned table under the information tent. Instead, they paraded through the Festival and proselytized, as was also their right, while carrying signs and a severed pig’s head. Although these actions set them apart from the other speakers and religious organizations at the Festival, they do not do so in any relevant respect. Any speaker could have walked the Festival grounds with or without signs if they chose to do so. The Bible Believers, like the other religious organizations at the Festival, sought to spread their faith and religious message. Although they declined to utilize the tent set aside for outside groups, their conduct was at all times peaceful while they passionately advocated for their cause, much like any other religious group. Wayne County did not threaten the Bible Believers based on their decision to march with signs and banners, but based on the content of the messages displayed on the signs and banners. The county’s disparate treatment of the Bible Believers was based explicitly on the fact that the Bible Believers’ speech was found to be objectionable by a number of people attending the Festival. Wayne County therefore violated the Bible Believers’ right to equal protection by treating them in a manner different from other speakers, whose messages were not objectionable to Festival-goers, by burdening their First Amendment rights.

The en banc court also held that the officers were not entitled to qualified immunity and that municipal liability was established.  On these issues, there were vigorous dissents.  And indeed, the en banc majority seems on tenuous ground, especially given its earlier discussion of Sixth Circuit precedent in Glasson v. City of Louisville decided in 1975:

In this Circuit, a modicum of confusion is understandable with respect to the prohibition against the heckler’s veto due to Glasson’s discussion of a good-faith affirmative defense.  . . . . Therefore, to the extent that Glasson’s good-faith defense may be interpreted as altering the substantive duties of a police officer not to effectuate a heckler’s veto, it is overruled.

Yet in the discussion of qualified immunity, the en banc court reasoned:

To the extent that Glasson’s discussion of a good-faith defense confused the issue of whether a heckler’s veto constitutes a constitutional violation, the facts and analysis in Glasson nonetheless alerted Defendants that removing a peaceful speaker, when the police have made no serious attempt to quell the lawless agitators, could subject them to liability.

That both the district judge and a previous panel of the Sixth Circuit had found that law enforcement's actions were constitutional, this seems a harsh conclusion - - - and is inconsistent with recent qualified immunity in First Amendment cases.  (For example, recall the unanimous Supreme Court 2014 opinion in Lane v. Franks, not cited in the Sixth Circuit opinions).

On the whole, the Sixth Circuit opinion validates the First Amendment right of provocative, offensive, and "challenging speech" - - - including symbolic speech such as marching with a pig's head on a stick - - - and requires law enforcement to protect such speech against (physically) hostile reactions by directing their efforts against those who are hostile rather than the speakers.   As Judge John Rogers, dissenting, suggested, one way to view the underlying controversy was that the "Bible Believers were hecklers seeking to disrupt the cultural fair" being held by the Arab-American community as an expressive enterprise.  The en banc majority clearly rejected that view - - - and held that the government should be liable for damages.

October 29, 2015 in Cases and Case Materials, Courts and Judging, Equal Protection, First Amendment, Free Exercise Clause, Opinion Analysis, Race, Religion, Speech | Permalink | Comments (0)

Tuesday, October 27, 2015

Ninth Circuit on Unconscious Bias, Equal Protection, and Batson

A divided Ninth Circuit panel has affirmed the district judge in granting habeas corpus and vacating a death sentence in its opinion in Crittenden v. Chappell.

Crittenden's claimed the prosecutor at trial excluded an African-American prospective juror on account of her race, in violation of the Equal Protection Clause of the Fourteenth Amendment, as interpreted in Batson v. Kentucky (1986). The Ninth Circuit had previously clarified that the peremptory challenge at issue need not be motivated solely by race, but only “motivated in substantial part” by race, “regardless of whether the strike would have issued if race had played no role.” On remand, the district judge found that the prosecutor was substantially motivated by race.

Lady-justice-juryWhile there are several issues in the case, including deference, appellate procedure, and retroactivity, the issue of "intent" under equal protection doctrine in the Batson context was central. The district judge's opinion engaged in specific comparisons regarding jurors and also stated "[t]he [side-by-side juror] comparisons demonstrate that . . . [the prosecutor] was motivated, consciously or unconsciously, in substantial part by race."   The relevance of "unconsciously" was a division among the Circuit judges.  For the majority, this was a "passing comment" in the district judge's opinion, and "all the court meant was, whatever the explanation for the prosecutor’s racial motive, that motive was a substantial reason for his use of a peremptory strike." (emphasis in original).  The majority added, "In other words, why the prosecutor had a conscious racial motive to strike [the potential juror] Casey in the first place – whether or not 'unconscious racism' partly explained that motive – was simply irrelevant to the Batson inquiry."  It interestingly added this footnote:

It was relevant, of course, to the prosecutor’s reputation. The district court’s reference to “unconscious racism” spared him from being found a racist. By suggesting the prosecutor may have had more benign racial motives for the strike, or that his racial motive may have been influenced by unconscious racism, the court hoped to shield the prosecutor from possible disrepute. As the court made clear, however, this effort was not designed to – and did not – detract from the court’s key finding that the strike was consciously motivated by race.

Thus, because the majority upheld the district court’s finding of a conscious racial motive, "we do not – and need not – address whether unconscious bias can establish a Batson violation."

Judge Margaret McKeown dissented from the opinion authored by Judge Raymond Fisher and joined by Judge Marsha Berzon, arguing that there needed to be a clearer indication of discriminatory purpose:

The remaining question is whether, in striking [the potential juror] Casey, the prosecutor had a discriminatory purpose. “‘Discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected . . . a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Hernandez v. New York (1991) (plurality) (quoting Person. Admin. of Mass. v. Feeney,  (1979)). The touchstone, as described in our caselaw, is whether race was a “substantial motivating factor” in the prosecutor’s decision to strike Casey.

(ellipses in original).  For dissenting judge McKeown, the burden was on the defendant to prove purposeful discrimination and he failed to do so. She added,

This case calls to mind Justice Breyer’s observation that the Batson inquiry can be an “awkward, sometime hopeless, task of second-guessing a prosecutor’s instinctive judgment—the underlying basis for which may be invisible even to the prosecutor exercising the challenge.” Miller-El v. Dretke (2005) (Breyer, J., concurring). In view of the record of what actually happened, the trial judge’s findings and the ultimate composition of the jury, our retrospective parsing simply cannot elevate ambiguous, speculative foundation to proof that the prosecutor was motivated in substantial part by racism.

The problem of the degree of proof of intent in equal protection claims generally and Batson specifically has vexed the courts.  Recall that the United States Supreme Court will be taking another look at equal protection doctrine under Batson this term in Foster v. Humphrey; the lower court had held that  merely because the prosecutor's notes and records revealed "that the race" - - - meaning Black - - - "of prospective jurors was either circled, highlighted or otherwise noted on various lists" did not establish purposeful discrimination. 

October 27, 2015 in Courts and Judging, Criminal Procedure, Equal Protection, Fourteenth Amendment, Opinion Analysis, Race | Permalink | Comments (0)

Tuesday, October 13, 2015

Third Circuit Reinstates Constitutional Claim Against NYC for Muslim Surveillance

The Third Circuit's 60 page opinion today in Hassan v. City of New York reverses and remands the terse dismissal of the complaint in February 2014 by United States District Judge William Martini.  The original complaint alleged that the New York City Police Department’s surveillance program targeted New Jersey Muslims solely on the basis of religion, thereby violating their First and Fourteenth Amendment rights.  The district judge found that there was no standing - - - in part because the plaintiffs did not know about their surveillance until it was revealed by the press and thus had no injury - - - and that the complaint did not state a plausible claim - - - in part because the "police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself."

The unanimous opinion by Judge Thomas Ambro, joined by Julio Fuentes, and with a very brief concurrence by Jane Roth regarding the standard of equal protection scrutiny to be applied, comes complete with a Table of Contents.  (Query whether opinions are increasingly availing themselves of a brief-like TOC: compare District Judge Shira Scheindlin's opinion in the NYC stop and frisk lawsuit, although her opinion is more than 3 times as long with many more footnotes.  Or perhaps there is something about NYC police practices that calls for a TOC?).

After a rehearsal of the NYC surveillance program and its disclosure, the court considers the problem of Article III standing.  For the Third Circuit, the "injury in fact" requirement of standing is satisfied by the plaintiffs' allegation of the denial of equal treatment on the basis of their religion under the Equal Protection Clause, as well as the First Amendment.  The court rejected NYC's arguments that there needed to be a tangible benefit denied, that there needed to be an overt condemnation (interestingly contrasting Plessy v. Ferguson and Brown v. Board of Education); and that the injuries were not sufficiently particularized.  As to the "fairly traceable" causation requirement, the court soundly rejected the contention that it was the only disclosure of the surveillance by the press rather than the surveillance itself that caused the injury. Finally, in its brief discussion of "redressability," the court, quoting an Eleventh Circuit case, noted that "While we cannot predict 'the exact nature of the possible relief . . . without a full development of the facts, an order enjoining the policy and requiring non-discriminatory investigation and enforcement would redress the injury.'"

On the equal protection issue, the Third Circuit held that the complaint plausibly alleged that the NYC surveillance program made a facial religious classification.  It further held that this religious classification does not require an "invidious motive.": 

While the absence of a legitimate motive may bear on whether the challenged surveillance survives the appropriate level of equal-protection scrutiny, “intentional discrimination” need not be motivated by “ill will, enmity, or hostility” to contravene the Equal Protection Clause.

The court here interestingly cites the district judge's decision in the NYC stop and frisk case. 

The Third Circuit thus finds that the NYC surveillance program was facially religious, but then discussed the tier of scrutiny that religious classifications should merit:

Perhaps surprisingly, neither our Court nor the Supreme Court has considered whether classifications based on religious affiliation trigger heightened scrutiny under the Equal Protection Clause. . . .

Although the answer to this question is not found in binding precedent, we hardly write on a clean slate. To start, it has long been implicit in the Supreme Court’s decisions that religious classifications are treated like others traditionally subject to heightened scrutiny, such as those based on race.  [Citations omitted]

This line of comment can be traced back to the famous footnote four of the Supreme Court’s 1938 decision in Carolene Products, where the Court suggested that discriminatory legislation should “be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment” if “directed at particular religious, or national, or racial minorities.”

After discussing a number of appellate court decisions, the Third Circuit panel held:

Today we join these courts and hold that intentional discrimination based on religious affiliation must survive heightened equal-protection review. Before turning more fully to our reasoning, however, we pause to reiterate that the term “heightened scrutiny,” as we use it, encompasses both “intermediate scrutiny” and “strict scrutiny.”

The panel stated that it need not - - - and should not - - - "determine in connection with its motion to dismiss which of the two applies, and we leave that question for the District Court in the first instance when and if it becomes necessary to decide it."  However, the court does engage in a Carolene Products-type of analysis to substantiate its conclusion, devoting some discussion to the "immutability" factor (which of course was not in the Carolene Products footnote).  It also noted that the "history of religious discrimination in the United States is intertwined with that based on other protected characteristics, including national origin and race," and that the allegations of the complaint reflected this intertwinement.

It is on this point that Judge Roth differs, arguing in her concurrence that intermediate scrutiny should apply and providing a somewhat personal explanation:

In my opinion, “intermediate scrutiny” is appropriate here. I say this because “intermediate scrutiny” is the level applied in gender discrimination cases. I have the immutable characteristic of being a woman. I am happy with this condition, but during my 80 years on this earth, it has caused me at times to suffer gender discrimination. My remedy now for any future gender discrimination would be reviewed with “intermediate scrutiny.” For that reason, I cannot endorse a level of scrutiny in other types of discrimination cases that would be stricter than the level which would apply to discrimination against me as a woman.

The Third Circuit did acknowledge the national security interest, but added that "it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights," explicitly invoking Korematsu and Hirabayashi.

The court's relatively brief First Amendment conclusion similarly rejects NYC's claim that animus must be proven.

The court concludes:

What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that “[l]oyalty is a matter of the heart and mind[,] not race, creed, or color.” [citation omitted].

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image via

 

 

October 13, 2015 in Equal Protection, Federalism, Fourteenth Amendment, Opinion Analysis, Race, Religion | Permalink | Comments (1)

Monday, September 28, 2015

Ninth Circuit Rejects Franchisers' Constitutional Challenges to Seattle's $15 Minimum Wage

Affirming the district judge's denial of a preliminary injunction, the Ninth Circuit's opinion in International Franchise Ass'n v. City of Seattle rejected all of the constitutional challenges to a Seattle provision that deemed franchises included in the definition of "large employers" and thus subject to the new $15 minimum wage.  Recall that the complaint challenged  the provision under the (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment, the First Amendment, preemption under the Lanham Act (trademarks), and state constitutional provisions.

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Photo by Steve Rhodes via

The unanimous Ninth Circuit panel's opinion found that there was not a likelihood of success on any of the constitutional claims, devoting most of its analysis to dormant commerce clause doctrine.  The panel first rejected the argument that the franchise regulation expressly discriminated against franchises as interstate commerce and was thus not "facially neutral." The panel also rejected the argument that the Seattle provision had a discriminatory purpose, noting that while there was some evidence that some persons involved in considering the issue were critical of franchise employment practices, even the strongest evidence of this (in an email), did not show that even this person "intended to burden out-of-state firms or interfere with the wheels of interstate commerce," and "[m]ore importantly, they also do not show that City officials wished to discriminate against out-of- state entities, bolster in-state firms, or burden interstate commerce."  Lastly, the panel rejected the argument that the Seattle provision discriminatory effects, agreeing with the district judge that the United States Supreme Court's decisions on dormant commerce clause can be "difficult to reconcile" and noting:

 We lack Supreme Court authority assessing whether a regulation affecting franchises ipso facto has the effect of discriminating against interstate commerce. Nor has the Supreme Court addressed whether franchises are instrumentalities of interstate commerce that cannot be subjected to disparate regulatory burdens. While regulations that expressly classify based on business structure or impose disparate burdens on franchises present interesting questions, our review is limited to considering whether the district court applied improper legal principles or clearly erred in reviewing the record.

 The footnote to this paragraph includes an extensive citation to lower courts that have considered the issue of whether measures that affect national chains violate the dormant Commerce Clause.  The Ninth Circuit panel concluded:

[T]he evidence that the ordinance will burden interstate commerce is not substantial. It does not show that interstate firms will be excluded from the market, earn less revenue or profit, lose customers, or close or reduce stores. Nor does it show that new franchisees will not enter the market or that franchisors will suffer adverse effects.

The Ninth Circuit panel dispatched the Equal Protection Clause claim much more expeditiously.  The Ninth Circuit applied the lowest form of rational basis scrutiny  - - - citing F.C.C. v. Beach Commc’ns, Inc. (1993) sometimes called "anything goes" rational basis - - - and finding there was a legitimate purpose (without animus) and the law was reasonably related to that purpose.

The court's discussion of the First Amendment claim was similarly brief, not surprising given that the court found the Speech Clause's threshold requirement of "speech"  was absent: "Seattle’s minimum wage ordinance is plainly an economic regulation that does not target speech or expressive conduct."

Additionally, the court agreed with the district judge that there was no preemption under the Lanham Act and no violation of the Washington State Constitution.

The Ninth Circuit panel did disagree with the district judge regarding some minor aspects of the non-likelihood to prevail on the merits preliminary injunction factors.  But on the whole, the opinion is a strong rebuke to the constitutional challenges to the Seattle laws.

Given the stakes (and the attorneys for the franchisers) a petition for certiorari is a distinct possibility.  Meanwhile, as we suggested when the case was filed, for ConLawProfs looking for a good exam review or exam problem, International Franchise Ass'n v. Seattle has much potential.

September 28, 2015 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech, State Constitutional Law, Supreme Court (US), Teaching Tips | Permalink | Comments (0)

Wednesday, September 23, 2015

Deputy Sheriff Gets No First Amendment Protection from Political Reprisal

The Eleventh Circuit ruled that a deputy sheriff does not enjoy First Amendment protection from retaliation in employment for her political beliefs. That's true, the court held, even when local law bans political retaliation against certain covered employees, including the deputy sheriff. The court also rejected the deputy sheriff's Equal Protection claim for gender discrimination.

The case arose when John Darr beat incumbent Sheriff Johnson in the sheriff race in Columbus, Georgia. Darr substantially reorganized the staff, including taking away significant responsibilities from Deputy Sheriff Terri Ezell. According to the court, Ezell "has a long and path-breaking record of law enforcement service for [the Columbus Consolidated Government]." She also supported Johnson (against Darr) in the sheriff race.

Ezell brought a First Amendment claim against Darr and the CCG for retaliating against her based on her political affiliation. Recognizing that circuit law said that a deputy sheriff enjoyed no First Amendment rights against political retaliation (because "the nature of the sheriff-deputy relationship is such that a sheriff must be able to require absolute loyalty from his deputies for his office to be effective"), Ezell argued that local law classified her position within the CCG civil service and prohibits employment decisions based on political patronage. In other words, she said that the CCG civil service system changed the nature of her position for First Amendment purposes in a way that gave her protection against political retaliation, notwithstanding circuit law.

The court rejected this argument. The court said that the touchstone of First Amendment protection for retaliation is the relationship between the deputy sheriff and the sheriff--a question of law--and that this isn't changed by the CCG civil service system. The court said that nothing in the local law could change the fundamental relationship between the offices for First Amendment purposes. This meant that Ezell was subject to circuit law, and that she enjoyed no First Amendment protection.

The court also rejected Ezell's Equal Protection claim based on gender discrimination. The court held that there was no factual dispute that Darr shifted Ezell's responsibilities in order to address problems in the local jail (which Ezell previously supervised)--a non-discriminatory explanation--and that Ezell couldn't show that this was a pretext.

September 23, 2015 in Cases and Case Materials, Equal Protection, First Amendment, News, Opinion Analysis | Permalink | Comments (0)

Wednesday, September 16, 2015

Daily Read: Val Napolean, the novel Birdie, and Cree Justice

Over at Jotwell, University of Victoria Professor of Law Val Napolean's  contribution to the Equality section suggests that the novel Birdie be "approached as a Cree law text—as a performance of law with difficult questions expressed and examined through narrative." 

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available here

Napolean writes:

Cases are law stories about something that has happened and that are publicly recorded in a particular way to be recalled in future collaborative legal reasoning through specific problems. In the same way, Birdie is a Cree law story placed in northern Alberta (near fictitious Little Loon First Nation) about a woman whose life is a personal chronicle of colonial law and history. But it is far more than this. It is also about Cree law that is undermined by colonization, but which has not disappeared . . . .

For US Con Law Profs teaching constitutional law, Napolean's discussion is an invitation to interrogate the stories that are told - - - or not told - - - in cases about Native peoples and justice.

September 16, 2015 in Books, Equal Protection, Scholarship | Permalink | Comments (0)

Friday, September 11, 2015

Federal District Judge Finds Town Ordinance Prohibiting Day Labor Solicitation Unconstitutional

In his opinion in Centro de La Comunidad Hispana de Locust Valley v. Town of Oyster Bay, United States District Judge Dennis Hurley held the town's ordinance prohibiting day labor solicitation unconstitutional under the First Amendment. 

The ordinance, Chapter 205-32 of the Code of the Town of Oyster Bay, sought to prohibit "any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle," and to similarly prohibit "the operator of any motor vehicle utilizing a public right-of-way within the Town of Oyster Bay to stop or stand within or adjacent to said public right-of-way or any area designated as either a traffic lane or a no-standing or no-stopping zone for the purpose of soliciting employment or accepting a solicitation of employment from a pedestrian."

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Masonry circa 1425 via


After first discussing preliminary matters including standing, Judge Hurley's description of the parties' arguments offers a good illustration of the types of doctrinal choices available under the First Amendment:

Plaintiffs maintain that the Ordinance must be stricken as violative of the First Amendment. First, it is a content-based enactment, presumptively unconstitutional and not justified as narrowly tailored to serve a compelling state interest. Second, if viewed as a “time, place or manner restriction” and not content- based, it is not narrowly tailored to serve “legitimate, content-neutral interest.” Third, even if viewed as restricting purely commercial speech, it is not narrowly tailored.

Defendants offer several arguments in response. First, the Ordinance does not affect expressive speech; rather, it regulates conduct. Second, day labor solicitation is commercial speech. As such, it is entitled to no protection because it relates to illegal activity; alternatively, the ordinance is a constitutional restriction of commercial speech. Finally, to the extent it is viewed as a time, place or manner restriction, it is narrowly tailored.

 Judge Hurley decided that the ordinance was a content-based regulation of commercial speech.  He thus applied the well-established four prong Central Hudson test, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (1980), as "adjusted" by Sorrell v. IMS Health Inc. (2011).

In deciding that the ordinance was content-based, Judge Hurley quoted the Court's recent decision in Reed v. Town of Gilbert (2015), including the passage that regarding the "commonsense" meaning of the phrase.  Here, Judge Hurley noted, to enforce the ordinance the Town authorities would have to "examine the content of the message conveyed."

Not surprisingly then, Judge Hurley found that the ordinance failed the fourth prong of Central Hudson - - - “whether the regulation is more extensive that necessary to serve the governmental interest” - - - given that the content-based restriction should be "narrowly tailored" and that there were "less speech-restrictive alternatives available."  He wrote:

Because of its breath, the ordinance prohibits speech and conduct of an expressive nature that does not pose a threat to safety on the Town’s streets and sidewalks. It reaches a lone person standing on the sidewalk, away from the curb, who attempts to make known to the occupants of vehicles his availability for work even if it does not result in a car stopping in traffic or double parking. It reaches children selling lemonade at the end of a neighbor’s driveway (which is, after all, “adjacent to” a public right of way), the veteran holding a sign on a sidewalk stating “will work for food,” and students standing on the side of a road advertising a school carwash. Even a person standing on the sidewalk holding a sign “looking for work - park at the curb if you are interested in hiring me” would violate the ordinance as it contains no specific intent element and no requirement that the “attempt to stop” result in traffic congestion, the obstruction of other Vehicles, or double parking. The Ordinance applies to all streets and roadways in the Town regardless of traffic flow and in the absence of any evidence that the traffic issues the Town relies on to support its interest exist elsewhere in the Town.

In support of this final observation, Judge Hurley quotes the Court's buffer-zone decision in McCullen v. Coakley (2014).

Interestingly, although Judge Hurley did not reach the Equal Protection challenge because he found the Ordinance unconstitutional under the the First Amendment, he provides a glimmer of the Equal Protection difficulty in the Town's position:

Nor is it any comfort that the Town’s safety officers will use their discretion, or be “trained” on how to determine whether a person is soliciting employment or attempting to stop a vehicle to solicit employment. Such discretion may surely invite discriminatory enforcement. . . . . Will safety officers be instructed and/or use their discretion to ignore the students advertising a school car wash and the child selling lemonade on the sidewalk and to ticket the group of Latino men standing on a corner near a home improvement store?

Moreover, he concludes that other ordinances are more than adequate to address the specific problem of traffic safety.

Judge Hurley's conclusion that the Oyster Bay day labor solicitation violates the First Amendment is similar to the Ninth Circuit's 2013 decision in Valle Del Sol Inc. v. Whiting that the Arizona day labor solicitation provision in SB1070 was unconstitutional.  Should the Town appeal, the Second Circuit would most likely find Valle Del Sol persuasive, especially since the Court's subsequent opinions provide even more support.

September 11, 2015 in Cases and Case Materials, Equal Protection, First Amendment, Opinion Analysis, Speech, Standing | Permalink | Comments (0)

Seventh Circuit Strikes Partisan Balance Statute in Judicial Elections

The Seventh Circuit this week struck an Indiana law election law that ensured "partisan balance" on the Marion Superior Court, in Marion County. Curiously (and tellingly), the law only applied to judicial elections in Marion County (the home of Indianapolis); more regular judicial election rules (or, in two counties, merit selection) applied in the rest of the state.

Here's how it worked. Each major party conducted a primary election in which each party selected a number of candidates that equaled half the open seats on the court in the general election. (If there were 16 open seats, the Republicans would put up 8 candidates, and the Dems would put up 8.) Then, in the general election, all primary winners would win a seat. The system virtually ensured an equal divide among the judges on the court. ("Virtually," because there was a remote chance that a minor-party candidate or independent could get elected.)

Common Cause challenged the law, arguing that it infringed on the right to vote. (What good is your vote in the general, if you can't select among competing candidates?) The court agreed.

The court applied the Burdick/Anderson balancing test and ruled that the infringement on the right to vote outweighed the state's interests. On the infringement side of the balance, the court simply noted that the system denied voters any choice in the general election--a "severe" burden on the right to vote:

the Statute removes electoral choice and denies voters any effective voice or ability to choose between candidates of the two major parties. In fact, absent a possible third party or independent candidate on the ballot [a remote chance, by the way--ed.], the general election is guaranteed to be uncontested, rendering any vote meaningless because there is no choice to be made.

On the state's interests side of the balance, the court rejected the claimed interest in ensuring fair political representation and impartiality, because that interest doesn't really apply to judicial elections (where judges make independent decisions in their own independent courtrooms, not like a legislature, where the body makes a decision as a whole), and because the state had other ways of achieving this interest (by enforcing standards of judicial conduct, e.g.). The court said that the state's interests in saving money and ensuring stability and public confidence could be achieved in other ways, too, and that in any event they were outweighed by the severe restriction on the right to vote.

The ruling means that the state needs to come up with a different way to elect Marion County judges before the next election (in 2018). The ruling is a victory for the right to vote, but it's a victory for judicial independence, too, given that this strange system applied only to Marion County, suggesting a legislative power-play against the court system in the state's capital and largest city.

The state hasn't said whether it will seek en banc review or cert.

September 11, 2015 in Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0)

Thursday, September 10, 2015

Ninth Circuit Rejects Equal Protection and Due Process Challenges to California Sexual Predator Statute

In its opinion in Taylor v. San Diego County today, a panel of the Ninth Circuit rejected constitutional challenges to indefinite detention as a "sexually violent predator" raised in a habeas petition governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

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"Lunatic Asylum" circa 1831 via

The court's equal protection analysis was essentially that "sexually violent predators" are "not similarly situated" to other civilly committed offenders.  "California’s expressed legislative policy is to protect the public from the increased danger posed by sexually violent predators," and thus indefinite detention, rather than one year renewable periods of detention do not offend equal protection. 

Additionally, the court found that there was no due process problem with the California statute's requirement that the person (not the state) bears the burden of proving, by a preponderance of the evidence, that he no longer meets the definition of a sexually violent predator. 

The opinion is another example of the federal courts giving wide latitude to state civil commitment of sexual offenders.

September 10, 2015 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Equal Protection | Permalink | Comments (0)

Tuesday, September 1, 2015

District Judge Finds "Obamacare" Contraception Mandate Unconstitutional as applied to "March for Life"

In an opinion that essentially extends religious protections to a nonreligious organization, Judge Richard Leon has ruled in March for Life v. Burwell that the so-called contraceptive mandate in the Patient Protection and Affordable Care Act (ACA or "Obamacare") cannot constitutionally be applied to a nonprofit anti-abortion employer.  While portions of Judge Leon's opinion predictably relied upon the Supreme Court's closely divided 2014 decision in Burwell v. Hobby Lobby, Inc. under the Religious Freedom Restoration Act (RFRA), Judge Leon notably found that the contraception mandate's exclusion of religious organizations - - - but not other organizations - - - violated the equal protection component of the Fifth Amendment.

Judge Leon applied rational basis review, but declared that

Were defendants to have their way here, rational basis review would have all the bite of a rubber stamp!

He continued:

Defendants contend that March for Life is not “similarly situated” to the exempted organizations because it “is not religious and is not a church.” Rational basis review is met, they argue, because the purpose served, “accommodating religious exercise by religious institutions,” is “permissible and legitimate.”  This not only oversimplifies the issue—it misses the point entirely! The threshold question is not whether March for Life is “generally” similar to churches and their integrated auxiliaries. It is whether March for Life is similarly situated with regard to the precise attribute selected for accommodation.  For the following reasons, I conclude that it most assuredly is.

[citations omitted]. 

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image via "March for Life" about us



In short, Judge Leon found that "March for Life" was similarly situated to religious organizations given the HHS rationale for excluding religious organizations from the contraception mandate:

HHS has chosen to protect a class of individuals that, it believes, are less likely than other individuals to avail themselves of contraceptives. It has  consequently moored this accommodation not in the language of conscientious objection,  but in the vernacular of religious protection. This, of course, is puzzling. In HHS’s own  view, it is not the belief or non-belief in God that warrants safe harbor from the Mandate.  The characteristic that warrants protection——an employment relationship based in part on a shared objection to abortifacients—is altogether separate from theism. Stated  differently, what HHS claims to be protecting is religious beliefs, when it actually is  protecting a moral philosophy about the sanctity of human life. HHS may be correct that  this objection is common among religiously-affiliated employers. Where HHS has erred,  however, is in assuming that this trait is unique to such organizations. It is not.

In other words, the HHS's rationale - - - the government interest - - - was not specifically religious and thus should not be limited to religious organizations in keeping with principles of equal protection.  Some of this reasoning is reminiscent of Hobby Lobby, of course, but there the level of scrutiny under RFRA was strict (or perhaps even stricter than strict) scrutiny, while Judge Leon is applying rational basis scrutiny. 

Interestingly, Judge Leon states that  "'religion' is not a talisman that sweeps aside all constitutional concerns," and quotes the classic conscientious objector case of Welsh v. United States (1970) for the "long recognized" principle that  “[i]f an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content . . . those beliefs certainly occupy in the life of that individual a place parallel to that filled by God in traditionally religious persons.”  Taken to its logical conclusion, this reasoning has the potential to eliminate - - - or at least ameliorate - - - the "special" protection of religious freedom.

In his application of RFRA, Judge Leon's opinion is on more well-plowed ground.  He notes that while "March for Life is avowedly non—religious, the employee plaintiffs do oppose the Mandate on religious grounds."  This brings the case within the purview of Hobby Lobby.  As Judge Leon phrases it:

The final question the Court must ask under RFRA is whether the current Mandate is the least restrictive means of serving this governmental interest. Assuredly, it is not!

While Judge Leon dismissed the free exercise claim,  based upon the DC Circuit's opinion and denial of en banc review in Priests for Life v HHS, the judge granted summary judgment in favor of plaintiffs on the Equal Protection and RFRA claims (as well as a claim under the Administrative Procedure Act).  

When this case reaches the DC Circuit, it will be interesting to see how the court - - - as well as religious organizations and scholars - - - views Judge Leon's potentially destabilizing equal protection analysis.

September 1, 2015 in Abortion, Courts and Judging, Current Affairs, Equal Protection, First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Privacy, Religion, Reproductive Rights | Permalink | Comments (0)