Thursday, August 7, 2014
Call for Presentations and Papers
Association of American Law Schools
AALS Workshop on Next Generation Issues on
Sex, Gender and the Law
June 24-26, 2015
Doubletree by Hilton at the Entrance to Universal Studios
Here's the CFP:
After more than forty years of formal sex equality under the law, this 2015 workshop will ask legal academics to look ahead to the future and identify, name, and analyze the next generation of legal issues, challenges, and questions that advocates for substantive gender equality must be prepared to consider. To this end, we seek paper and presentation proposals that not only pinpoint and examine future law-related concerns about gender equality but that also provide innovative new approaches to achieving equality for women and those who challenge gender norms in our society, with a particular attention to employment, violence against women, reproductive rights, women's poverty, and women in legal education.
Our hope is to build on the insights of the participants in the 2011 AALS Workshop on Women Rethinking Equality by exploring new and forward-looking ideas for scholarship, law reform, and advocacy that can bring about women's equality. An additional expectation is that each session will address the ways in which characteristics other than gender, including race, sexual orientation, immigration status, socioeconomic class, and disability, impact women's lives. We also anticipate that each session will analyze the institutional strengths and weaknesses of courts, legislatures, and administrative bodies for bringing about change and offer suggestions for legal reforms that can better meet women's needs. Our final goal is to provide a rich and supportive atmosphere to foster mentoring and networking among teachers and scholars who are interested in women's equality and the law.
The format of the workshop will involve plenary sessions, concurrent sessions drawn from this Call for Presentations and Papers, and a closing panel. The closing panel, also drawn from this Call, will consist of a brainstorming session to consider projects and proposals for proactive measures to bring about gender equality.
The concurrent sessions will feature presentations related to gender equality issues, with preference given to presentations by junior scholars and those proposals related to the topics of employment, violence against women, reproductive rights, women's poverty, and women in legal education. We will organize the presentations into panels based on the subject matter of the proposals. Each presentation will last for 15 minutes, followed by questions from the moderator and audience.
Interested faculty should submit a brief written description (no more than 1000 words) of the proposed presentation, along with his or her resume. Please e-mail these materials to email@example.com by September 15, 2014. We will notify selected speakers by November 1, 2014.
The final plenary session of the conference will consist of 10-12 five-minute presentations of ideas for future projects that will advance gender equality in the law. Each selected participant will be limited to five minutes to present his or her idea or project. The presentations will be followed by audience feedback and comments. Although we will grant preference to presentations by junior scholars and those proposals related to the topics of employment, violence against women, reproductive rights, women's poverty, and women in legal education for the concurrent sessions, we welcome proposals for this brainstorming session on any topic related to gender equality.
Interested faculty should submit a written description of the proposed presentation (no more than 1000 words), along with his or her resume. Please e-mail these materials to firstname.lastname@example.org by September 15, 2014. We will notify selected speakers by November 1, 2014.
Friday, August 1, 2014
Affirming the opinion of United States District Judge Deborah Batts, the Second Circuit's opinion in American Atheists v. Port of Authority of NY and NJ held that there is no Establishment Clause violation when the National Museum at the former World Trade Center towers destroyed on September 11, often colloquially known as the "Ground Zero" Museum or the September 11 Museum, chose to display a large Latin cross.
Importantly, the cross is placed in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” as part of the September 11 historical narrative. On appeal, the American Atheists seemingly narrowed the original challenge and argued that the defendants "impermissibly promote Christianity in violation of the Establishment Clause and deny atheists equal protection of the laws by displaying The Cross at Ground Zero in the Museum unaccompanied by some item acknowledging that atheists were among the victims and rescuers on September 11."
The unanimous panel's 42 page opinion applies Lemon v. Kurtzman to the Establishment Clause issue and much more briefly considers the equal protection argument.
Here's the court's summary of its conclusion:
1. Displaying The Cross at Ground Zero in the National September 11 Museum does not violate the Establishment Clause because:
a. the stated purpose of displaying The Cross at Ground Zero to tell the story of how some people used faith to cope with the tragedy is genuine, and an objective observer would understand the purpose of the display to be secular;
b. an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled “Finding Meaning at Ground Zero”; the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context; and
c. there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.
2. In the absence of any Establishment Clause violation or any evidence of discriminatory animus toward atheists, the Museum did not deny equal protection by displaying The Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.
It would be doubtful if this case goes any further; the cross at the museum looks as if it is there to stay.
Tuesday, July 29, 2014
Divided Fifth Circuit Upholds Preliminary Injunction Against Mississippi's Restrictive Abortion Law HB 1390
A panel of the Fifth Circuit in its opinion today in Jackson Women's Health Organization v. Currier upheld the district judge's injunction against the enforcement of a restrictive abortion statute known as Mississippi HB 1390.
The statute required physicians performing abortions to have admitting privileges to a nearby hospital. As the court noted, a similar provision in Texas (HB 2) was recently upheld by the Fifth Circuit in Planned Parenthood of Texas Surgical Providers v. Abbott. As to the rational basis of such a law, the panel stated it was "bound" by Abbott as precedent to accept that the Mississippi statute survives a constitutional challenge.
Regarding undue burden, however, the panel majority, in an opinion by Judge E. Grady Jolly (who interestingly hails from Mississippi) and joined by Judge Stephen Higginson, the effects of HB 1390 were relevant in this as-applied challenge. In assessing the undue burden, the court found it highly relevant that “if enforced, the admitting privileges requirement would likely require JWHO, the only currently licensed abortion facility in Mississippi, to lose its license.” The panel rejected the State's attempt to "walk back" this statement - - - which is actually a quote from the State's opening brief - - - as "too little, too late." Additionally, the majority found it important that the hospitals had rejected the physicians' applications for admitting privileges based on the fact that the physicians performed abortions.
The central - - - and exceedingly interesting - - - question of the undue burden analysis is the relevance of the clinic's status as the only abortion clinic remaining in Mississippi. The State argued that there is no undue burden because women could travel to another state and many of these distances would not be unduly burdensome in and of themselves. Recall that in Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992) the plurality opinion rejected the contention that traveling long distances constituted an undue burden. But, as Judge Jolly notes, there was no suggestion that women should have to go to neighboring states in Casey or in any other opinion, and there is at least one circuit court opinion that finds it "dispositive" that women had to leave the state to exercise their constitutional right.
Additionally - - - and this is the interesting part - - - the court relies upon State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) in the United States Supreme Court rejected Missouri's argument that its failure to admit an African-American man to its law school was essentially cured by its offer of a tuition stipend to allow Mr. Gaines to attend law school in another state. Here's the passage from Gaines that Judge Jolly finds worthy of quoting at length:
[T]he obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. . . . That obligation is imposed by the Constitution upon the States severally as governmental entities, —each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system.
Id. at 350. Judge Jolly admits that Gaines can be distinguished, but finds Gaines nevertheless determinative: " a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights."
In a lengthy and somewhat vehement dissent - - - complete with quotations from Albert Camus - - - Senior Judge Emilio Garza finds many things to criticize in the majority's opinion, including the majority's failure to recognize there is not sufficient state action for a constitutional claim (it is the hospitals denying admitting privileges rather than the statute that are the cause); the majority's failure to honor the distinction between equal protection (as in Gaines) and due process (in the abortion context); the majority's belief that there is relevance to crossing state lines (given the constitutional right to travel across state lines articulated in Saenz v. Roe); the majority's failure to recognize that Casey is nothing more than a "verbal shell game" (quoting Justice Scalia's dissent in Casey); the majority's recognition of the "liberty" interest (quotes in original) in the Due Process Clause; and the majority's participation in "aggrandizement of judicial power."
But the central issue of federalism including not only states' rights but states' responsibilities raised by this opinion and litigation is one that merits close consideration.
July 29, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, July 28, 2014
Affirming the federal district judge's decision in February, a panel of the Fourth Circuit in a divided opinion has held in Bostic v. Schaefer that Virginia's same-sex marriage prohibitions are unconstitutional.
violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples’ lawful out-of-state marriages.
At various times, the court blends Due Process and Equal Protection analysis and precedent, but both spring from its conclusion that "marriage" is a fundamental right and that "marriage" includes same-sex marriage. After discussing Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley, the court notes:
These cases do not define the rights in question as “the right to interracial marriage,” “the right of people owing child support to marry,” and “the right of prison inmates to marry.” Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right. The Supreme Court’s unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of “freedom of choice,” Zablocki, 434 U.S. at 387, that “resides with the individual,” Loving, 388 U.S. at 12. If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed.
The court's use of "couplings" implicitly addresses a portion of the oft-called slippery slope argument that is raised by Judge Paul Niemeyer in his dissent: what would prevent this rationale from extending to polygamy? The dissent also invokes incest, accusing the majority of "dictionary jurisprudence" when it (re)defines marriage to include same-sex marriage. But of course, the definitional conundrum plagues the dissent as well, when it argues that certain qualities are "foundational" to marriage and other qualities are "irrelevant." For the dissent, this is the "biological link between procreation and marriage," a link that does exist in the polygamous and incestuous marriages the dissent disapproves.
For the majority, after finding marriage a fundamental right deserving of strict scrutiny, the five governmental interests argued as supporting the marriage laws not surprisingly fail to pass constitutional muster:
- (1) Virginia’s federalism-based interest in maintaining control over the definition of marriage within its borders,
- (2) the history and tradition of opposite-sex marriage,
- (3) protecting the institution of marriage,
- (4) encouraging responsible procreation, and
- (5) promoting the optimal childrearing environment.
More surprising is that although these interests are raised by the parties the court calls the "Proponents" of the Virginia marriage laws, there is little in the court's opinion that analyzes their standing to appeal. The court does analyze the standing of the plaintiffs to sue the defendants George Schaefer III (in his official capacity as Clerk of Court for Norfolk Circuit Court) and Janet Rainey (in her official capacity as State Registrar of Vital Records). And since these parties were indeed defendants, there may be little need for an extensive analysis of appellate standing as was necessary in the same-sex marriage cases decided by the United States Supreme Court in June 2013. Nevertheless, recall that the (new) Virginia Attorney General had decided during the district court litigation that the Virginia laws were unconstitutional and filed a notice of change of position; however the laws continued to be enforced.
The Fourth Circuit thus joins the Tenth Circuit in holding that a state's same-sex marriage ban violates the Fourteenth Amendment. While these circuit court opinions are divided, the dozen or so federal district judges who have considered the issue have been unanimous in reaching the same conclusion.
July 28, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, State Constitutional Law, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Monday, July 21, 2014
Today President Obama signed an Executive Order: "Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity."
Basically, the Order broadens the grounds of prohibited discrimination by the federal government to encompass sexual orientation and gender identity.
Here's the video put out by the White House:
And here are some more specific details:
The Executive Order broadens the terms of prohibited discrimination in federal employment in Executive Order 11478 by President Nixon, as amended to include "sexual orientation" in Executive Order 13087 by President Clinton to now include "gender identity."
It also broadens the terms of prohibited discrimination by federal contractors in Executive Order 11246 issued by Lyndon Johnson to now include "sexual orientation and gender identity."
As the White House Press Release makes clear, the federal contractors Executive Order does not contain an explicit religious exemption, but does preserve the one issued by George W. Bush, Executive Order 13279, which amended 11246 to exempt "a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”
But what about Bush's Executive Order? Entitled "Equal Protection of the Laws for Faith-Based and Community Organizations," the 2002 Executive Order was controversial.
This might be a good time to reread Michele Gilman's terrific article from 2007, If at First You Don't Succeed, Sign an Executive Order: President Bush and the Expansion of Charitable Choice, 15 Wm. & Mary Bill Rts. J. 1103 (2007). Gilman argues that Bush has exceeded his constitutional powers. Her main arguments are about social service providers and grants - - - not at issue in Obama's Executive Order Amendments issued today - - - but she spends a substantial section looking at procurement, including an enlightening discussion of JFK's two executive orders requiring federal contractors to take affirmative action to promote full employment opportunities.
And Gilman's article is a good "test" for those arguing that Obama has exceeded constitutional power by issuing Executive Orders.
While preserving Bush's Order and not including a broader exemption as some had wanted, the Executive Order preserves the status quo. It allows religious entities to discriminate on the basis of religion, but not on any other basis. The White House Press Release adds that "under the First Amendment, religious entities are permitted to make employment decisions about their ministers as they see fit." It does not mention the Religious Freedom Restoration Act, the statute on which last month's controversial Hobby Lobby decision was grounded, allowing a religious exemption from the provision of employee insurance coverage for certain contraception.
Friday, July 18, 2014
What does the Tenth Circuit Court of Appeals panel decide in its 106 page divided opinions in Bishop v. Smith? It's complicated.
But essentially the Tenth Circuit affirms the district judge's opinion finding the Oklahoma ban on same-sex marriage unconstitutional and extends to Oklahoma its own ruling in Kitchen v. Herbert (by this same panel) from a few weeks ago finding Utah's same-sex marriage prohibition unconstitutional.
The complications are caused in part by the procedural posture of the case. For the majority opinion, authored Judge Carlos Lucero, and joined by Judge Jerome Holmes (as was Herbert v. Kitchen), the major issue was the standing of the plaintiffs, specifically on the "redressability" prong of standing. Recall that Oklahoma has both a constitutional amendment and a statute limiting marriage to "a man and a woman" and that the Oklahoma constitutional amendment not only prohibits same-sex marriage but prohibits its recognition even if valid in another state.
The plaintiffs, in a lawsuit filed in 2004 soon after the state constitutional amendment was adopted, challenged only the state constitutional amendment but not the statute.
Affirming the district judge, the Tenth Circuit held plaintiffs nevertheless had standing because "the statutory prohibitions are subsumed in the challenged constitutional provision, an injunction against the latter’s enforcement will redress the claimed injury." However, again affirming the district judge, the plaintiffs did not have standing to challenge the "recognition" portion of the constitutional amendment because the defendant - - - the clerk of court - - - could not redress the non-recognition injury.
This problem as to the non-recognition of marriage claim is further complicated by the fact that the Tenth Circuit, in considering a dismissal of the Governor and Attorney General as defendants who could redress the injury stated - - - or seemed to state? - - - that the Clerk of the Court was the correct defendant. Thus, under a "law of the case" argument, the courts should be bound by that determination. The Tenth Circuit panel decided it was not bound, in part because of the "new evidence" of an affidavit by the Court Clerk describing her duties. It also rejected a nonseverability of the recognition and nonrecognition portions of the provision, finding that because it had not been made earlier it was waived.
As to the merits, the majority held that it was governed by its ruling in Kitchen v. Herbert, although facts and arguments differed "in some respects," the "core holdings are not affected by those differences." The panel majority did discuss two additional arguments: a Baker v. Nelson argument that lower courts were not free to consider doctrinal developments and the addition of a government interest that "children have an interest in being raised by their biological parents."
Judge Holmes concurred separately to discuss why "animus" was not an appropriate analysis. Judge Holmes notes that the district judge "wisely" did not rely on animus, and that most of the other decisions invalidating same-sex marriage laws have "exercised the same forebearance." But, he noted, several other district judges have relied on animus, citing Baskin v. Bogan, Henry v. Himes, DeLeon v. Perry, and Obergefell v. Wymyslo - - - interestingly none of which are in the Tenth Circuit - - - and he used the concurrence to endeavor "to clarify the relationship between animus doctrine and same-sex marriage laws and to explain why the district court made the correct decision in declining to rely upon the animus doctrine."
In his relatively brief partially dissenting opinion, Judge Paul Kelly contended that there was no standing to challenge the constitutional amendment absent a challenge to the statute and would not reach the merits. However, he also disagreed on the merits, as he did in the panel's decision in Kitchen v. Herbert. For Judge Kelly, as he phrases it here:
Removing gender complementarity from the historical definition of marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process. Absent a fundamental right, traditional rational basis equal protection principles should apply, and apparently as a majority of this panel believes, the Plaintiffs cannot prevail on that basis. Thus, any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.
This will be the heart of the matter when - - - rather than if - - - these cases reach the United States Supreme Court. For now, however, the Tenth Circuit stayed its "mandate pending the disposition of any subsequently-filed petition for writ of certiorari."
July 18, 2014 in Courts and Judging, Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Sexual Orientation, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 15, 2014
On Remand, Fifth Circuit Panel Reconsiders UT's Affirmative Action Plan from Fisher v. University of Texas
By a divided opinion in Fisher v. University of Texas at Austin, a panel of the Fifth Circuit has held that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.
Recall that more than a year ago, the United States Supreme Court reversed the Fifth Circuit's finding in favor of the University (affirming the district judge). The Court remanded the case for a "further judicial determination that the admissions process meets strict scrutiny in its implementation." The opinion, authored by Justice Kennedy - - - with only Justice Ginsburg dissenting and Justice Kagan recused - - -specified that the "University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal" of diversity and the University should receive no judicial deference on that point.
Today's Fifth Circuit panel decision, authored by Judge Patrick Higginbotham, and joined by Judge Carolyn Dinen King, first decided that it would consider the case. The panel rejected the standing arguments, including the fact that Abigail Fisher graduated from another university in 2012, because the "actions of the Supreme Court do not allow our reconsideration" of the standing issue. In other words, the Court knew about the standing issues when it remanded the case in June 2013. The panel also carefully considered the Court's remand language: "The judgment of the Court of Appeals is vacated, and the case remanded for further proceedings consistent with this opinion.” Fisher argued that the Court required the Fifth Circuit to perform the reconsideration, while the University of Texas argued that the matter should be remanded to the district judge. On this issue, the Fifth Circuit sided with Fisher, holding that because "there are no new issues of fact that need be resolved, nor is there any identified need for additional discovery; that the record is sufficiently developed; and that the found error is common to both this Court and the district court," a remand to the district judge "would likely result in duplication of effort."
The panel majority's opinion then discussed in detail the University of Texas at Austin's admissions policies and efforts. It noted:
“Narrow tailoring does not require exhaustion of every race neutral alternative,” but rather “serious, good faith consideration of workable race- neutral alternatives that will achieve the diversity the university seeks.” Put simply, this record shows that UT Austin implemented every race-neutral effort that its detractors now insist must be exhausted prior to adopting a race- conscious admissions program—in addition to an automatic admissions plan not required under Grutter that admits over 80% of the student body with no facial use of race at all.
Nevertheless, the panel recognized that this "automatic admissions plan" - - - the Top Ten Percent plan - - - achieves diversity because of the segregation of Texas' high schools. Under the "holistic view" of Grutter for the remaining 20%, absent a consideration of race, the selection would not be racially diverse.
Concluding its 40 page opinion, the panel wrote:
In sum, it is suggested that while holistic review may be a necessary and ameliorating complement to the Top Ten Percent Plan, UT Austin has not shown that its holistic review need include any reference to race, this because the Plan produces sufficient numbers of minorities for critical mass. This contention views minorities as a group, abjuring the focus upon individuals— each person’s unique potential. Race is relevant to minority and non-minority, notably when candidates have flourished as a minority in their school— whether they are white or black. Grutter reaffirmed that “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race still matters.” We are persuaded that to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter. The need for such skill sets to complement the draws from majority-white and majority-minority schools flows directly from an understanding of what the Court has made plain diversity is not. To conclude otherwise is to narrow its focus to a tally of skin colors produced in defiance of Justice Kennedy’s opinion for the Court which eschewed the narrow metric of numbers and turned the focus upon individuals. This powerful charge does not deny the relevance of race. We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix where being white in a minority-majority school can set one apart just as being a minority in a majority-white school—not a proffer of societal discrimination in justification for use of race, but a search for students with a range of skills, experiences, and performances—one that will be impaired by turning a blind eye to the differing opportunities offered by the schools from whence they came.
.... the backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of race towards a critical mass. We have hewed this line here, persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race, faithful to the content given to it by the Supreme Court. To reject the UT Austin plan is to confound developing principles of neutral affirmative action, looking away from Bakke and Grutter, leaving them in uniform but without command—due only a courtesy salute in passing.
Dissenting, Judge Emilio Garza essentially contended that the majority was giving deference to the University. He noted that it is not impossible "for a public university to define its diversity ends adequately for a court to verify narrow tailoring with the requisite exacting scrutiny," even with the use of "critical mass." But he somewhat confusing stressed that
What matters now, after Fisher, is that a state actor’s diversity goals must be sufficiently clear and definite such that a reviewing court can assess, without deference, whether its particular use of racial classifications is necessary and narrowly tailored to those goals.
Yet what will matter now is whether this panel will have the last say. The Fifth Circuit could grant en banc review or the United States Supreme Court will grant certiorari and take yet another look at affirmative action.
Monday, July 14, 2014
Seventh Circuit Finds Indiana's Clergy-Only Marriage Solemnization Statute Violates the First Amendment
In its 11 page opinion today in Center for Inquiry v. Marion Circuit Court Clerk, a panel of the Seventh Circuit has held Indiana Code §31-11-6-1 violates the First Amendment. The provision specifies who can solemnize a marriage and includes "religious officials designated by religious groups but omits equivalent officials of secular groups such as humanist societies." The plaintiffs, a humanist group and a leader of the group deemed a "secular celebrant," were not allowed to solemnize a marriage unless they obtained clergy credentials or "called themselves a religion."
Judge Easterbrook, writing for the unanimous panel, stated that it is unconstitutional to make distinctions between "religious and secular beliefs that hold the same place in adherents’ lives," citing the well known conscientous objector cases of Welsh and Seeger, as well as Torasco v. Watkins, and the Seventh Circuit precedent regarding accommodations for atheists in prison. There is not, Easterbrook wrote, an "ability to favor religions over non-‐‑theistic groups that have moral stances that are equivalent to theistic ones except for non-‐‑belief in God or unwillingness to call themselves religions."
As for Indiana's argument that the humanists were not actually being excluded from solemnizing marriages under the statute, the court had this to say:
Adherents to faiths with clergy can be married in two steps: first they obtain a license, Ind. Code §31-11-4-1, and then they have the marriage solemnized by a priest or equivalent person in the list in §31-11-6-1. (Plaintiffs do not challenge the licensure statute, because religion is irrelevant to that procedure.) Humanists could achieve the same result in three steps: first get a license, then have a humanist celebrant perform a public ceremony appropriate to their beliefs, and finally have a clerk of court or similar functionary solemnize the marriage. That’s true enough—but it just restates the discrimination of which plaintiffs complain. Lutherans can solemnize their marriage in public ceremonies conducted by people who share their fundamental beliefs; humanists can’t. Humanists’ ability to carry out a sham ceremony, with the real business done in a back office, does not address the injury of which plaintiffs complain.
Interestingly, the opinion also had something to say about the equal protection problems of the statutory scheme, noting that the distinctions between religions that have clergy and those that do not as well as "the state’s willingness to recognize marriages performed by hypocrites," violate the Equal Protection Clause:
It is irrational to allow humanists to solemnize marriages if, and only if, they falsely declare that they are a “religion.” It is absurd to give the Church of Satan, whose high priestess avows that her powers derive from having sex with Satan, and the Universal Life Church, which sells credentials to anyone with a credit card, a preferred position over Buddhists, who emphasize love and peace. A marriage solemnized by a self-declared hypocrite would leave a sour taste in the couple’s mouths; like many others, humanists want a ceremony that celebrates their values, not the “values” of people who will say or do whatever it takes to jump through some statutory hoop.
The court found Indiana's reliance on the Supreme Court's most recent Establishment Clause decision, Town of Greece v. Galloway inapposite, easily distinguishing Galloway as not being about the regulation of private conduct as the Indiana solemnization statute was.
The decision could pave the way for other First Amendment challenges to solemnization statutes that provide a special status for religious clergy.
Monday, July 7, 2014
Ninth Circuit Finds DACA Plaintiffs Entitled to Preliminary Injunction to Receive Drivers' Licenses in Arizona
The Ninth Circuit's opinion in Arizona Dream Act Coalition v. Brewer reversed the denial of a preliminary injunction finding that the plaintiffs had a substantial likelihood of success on their equal protection claim.
The plaintiffs challenged an Executive Order by Arizona Governor Jan Brewer that prohibits recipients of the federal program called the “Deferred Action for Childhood Arrivals” (DACA) from obtaining driver’s licenses by using Employment Authorization Documents as proof of their authorized presence in the United States. The Ninth Circuit panel of judges - - - Harry Pregerson, Marsha S. Berzon, and Morgan Christen - - - in an opinion authored by Pregerson held that even under a rational basis standard of equal protection review, there was no legitimate state interest that was rationally related to defendants’ decision to treat DACA recipients disparately from other noncitizens who were permitted to use their Employment Authorization Documents as proof of their authorized presence in the United States when applying for driver’s licenses.
The major rationale proffered by Arizona for its disparate treatment between classes of noncitizens was that "it is rational to accept (c)(9) and (c)(10) Employment Authorization Documents as proof that the holder’s “presence . . . is authorized under federal law,” Ariz. Rev. Stat. Ann. § 28-3153(D), because persons with (c)(9) and (c)(10) documents “[are] on a path to lawful status,” while DACA recipients are not." The court was "unconvinced" that Arizona "defined 'a path to lawful status' in a meaningful wa," reasoning that "noncitizens’ applications for adjustment of status or cancellation of removal are often denied, so the supposed 'path' may lead to a dead end."
But even so, the court - - - in what could be considered a back door preemption argument - - - noted that states, including Arizona, “enjoy no power with respect to the classification of aliens,” citing Plyler v. Doe, "so their attempt to distinguish between these noncitizens on the basis of an immigration classification that has no basis in federal law is not likely to withstand equal protection scrutiny."
The court likewise rejected the other four rationales raised by Arizona:
- that issuing driver’s licenses to DACA recipients might expose the Arizona Department of Transportation to legal liability “for issuing driver’s licenses to 80,000 unauthorized immigrants;”
- that issuing driver’s licenses to DACA recipients might allow DACA recipients to access state and federal benefits to which they are not entitled;
- that the DACA program might be canceled, requiring Arizona to revoke DACA recipients’ driver’s licenses;
- that DACA recipients may have their authorized presence revoked at any time, and thereafter may be quickly removed from the United States, leaving those they may have injured in automobile accidents with no financial recourse.
The district judge had similarly found these rationales were not persuasive, but had denied the preliminary injunction for failure to show sufficient irreparable harm. The Ninth Circuit found there was such harm, faulting the district judge for seeking to "evaluate the severity of the harm to Plaintiffs, rather than simply determining whether the harm to Plaintiffs was irreparable."
The panel split on the viability of the plaintiffs' preemption claim, with Judge Christen concurring separately to contended that plaintiffs' also had a viable preemption claim.
This is an important case for state benefits including licenses that are being denied to DACA receipients, including licenses to practice law.
Tuesday, July 1, 2014
In his opinion today in Love v. Beshear, Judge John Heyburn held that the Kentucky provisions prohibiting same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment, but stayed the issuance of an injunction pending a resolution by the Sixth Circuit.
Recall that in February, Judge Heyburn ruled in Bourke v. Beshear that Kentucky's statutory and state constitutional provisions defining marriage as limited to one man and one woman violate the Fourteenth Amendment's Equal Protection Clause when applied to same-sex spouses married in another state.
Today's opinion considers those same constitutional and statutory provisions - - - KY. CONST. § 233A; KY. REV. STAT. ANN. §§ 402.005, .020(1)(d) (West 2014) - - - but in the context of a right to marry under Kentucky law. And, not surprisingly, today's opinion reaches similar conclusions to the earlier case of Bourke v. Beshear.
Judge Heyburn quickly concludes that Baker v. Nelson, 409 U.S. 810 (1972), in which the Supreme Court dismissed “for want of a substantial federal question” a challenge to a Minnesota Supreme Court ruling concluding that a same-sex couple did not have the right to marry under the federal Due Process or Equal Protection Clauses, is not precedential. It "is difficult to take seriously the argument that Baker bars Plaintiffs’ challenge," given that the rule for the precedential value of a summary disposition includes the exception "unless doctrinal developments indicate that the Court would rule differently now." As Judge Heyburn states: "Since 1972, a virtual tidal wave of pertinent doctrinal developments has swept across the constitutional landscape."
In considering these doctrinal developments and the applicable standard of scrutiny under Equal Protection doctrine, Judge Heyburn first considers the right at stake. He analyzes whether the right to marry is a fundamental right, but concludes that this precise question is one that "neither the Supreme Court nor the Sixth Circuit has answered." Heyburn declines to engage in "overreaching" on this issue, because the fundamental rights analysis is unnecessary given the analysis regarding sexual orientation classifications.
Judge Heyburn's conclusion on the level of scrutiny to be applied is intermediate scrutiny. Note that this is a departure from his earlier decision in Bourke to apply rational basis. Here, his conclusion - - - admittedly not supported by specific Supreme Court or Sixth Circuit precedent - - is that "homosexual persons constitute a quasi-suspect class based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi- suspect.” He reaches this conclusion by applying four factors: historical discrimination; the ability to contribute to society; immutable defining characteristics; and political powerlessness. Thus, the opinion would ordinarily then apply the intermediate scrutiny standard as articulated by the court: "“substantially related to an important governmental objective."
But Judge Heyburn takes a different path, similar to the one he took in Bourke v. Beshear:
Ultimately, Kentucky’s laws banning same-sex marriage cannot withstand constitutional review regardless of the standard. The Court will demonstrate this by analyzing Plaintiffs’ challenge under rational basis review.
In discussing Kentucky's profferred interests, Judge Heyburn writes that the state's "arguments are not those of serious people." Moreover, he concludes that the means chosen are not rationally related:
Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses. Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have.
Judge Heyburn's last section of the opinion addresses Kentuckians, but in a much more restrained manner than his earlier opinion in Bourke. In Love v. Beshear, Judge Heyburn notes
Since this Court’s Bourke opinion [in February 2014], the legal landscape of same-sex marriage rights across the country has evolved considerably, with eight additional federal district courts and one circuit court invalidating state constitutional provisions and statutes that denied same-sex couples the right to marry.
Heyburn cites the Tenth Circuit's opinion in Kitchen v. Herbert, as well as the district court opinions in Baskin v. Bogan (Indiana); Wolf v. Walker (Wisconsin); Whitewood v. Wolf (Pennsylvania); Geiger v. Kitzhaber (Oregon); Latta v. Otter (Idaho); De Leon v. Perry (Texas); DeBoer v. Snyder (Michigan); and Bostic v. Rainey (Virgina).
He adds that with "this opinion, this Court joins their company."
It remains to be seen, however, whether the Sixth Circuit will also join this increasingly large assembly.
July 1, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 25, 2014
In his decision today in Baskin v. Bogan, United States District Judge Richard Young permanently enjoined Indiana officials from enforcing its requirement that marriage requires a female and a male, and its ban on the recognition of same sex marriages legally valid in other states, Indiana Code Section 31-11-1-1 (subsections a & b).
After resolving problems of the proper defendant and quickly disposing of the argument that Baker v. Nelson's summary finding by the Supreme Court in 1972 has meaningful precedential value, Judge Young's opinion proceeds along three separate tracks.
First, Judge Young finds that marriage is a fundamental right and therefore the statutory ban on same-sex marriage should be subject to strict scrutiny. Judge Young concluded that the scope of the fundamental right is not limited, quoting Judge Black's opinion in Henry v. Himes that the United States Supreme Court has not limited this fundamental right in its pertinent cases; the Court "consistently describes a general ‘fundamental right to marry’ rather than ‘the right to interracial marriage,’ ‘the right to inmate marriage,’ or ‘the right of people owing child support to marry.’" Applying strict scrutiny, Judge Young articulates the state's proffered interest "in conferring the special benefit of civil marriage to only one man and one woman is justified by its interest in encouraging the couple to stay together for the sake of any unintended children that their sexual union may create," but declines to asess it and assumes that it is "sufficiently important interest." However, Judge Young finds that the state has not demonstrated that the statute is “closely tailored” to that interest, but instead is "both over- and under-inclusive."
Second, Judge Young analyzes the statute on the basis of equal protection, rejecting the argument that the statute makes a gender classification and concluding that it makes a sexual orientation classification. While Judge Young contends that while it might be time to "reconsider" whether sexual orientation classifications should be analyzed under rational basis scrutiny, the "court will leave that decision to the Seventh Circuit, where this case will surely be headed." Applying rational basis scrutiny, however, Judge Young concludes that there is no rational relationship to the interests proffered by the state.
Third, Judge Young independently analyzes subsection b of the statute, applying to recognition. The judge notes that the "parties agree that out-of-state, same-sex marriages are treated differently than out-of-state, opposite-sex marriages," and thus "the question is whether that difference violates the Equal Protection Clause." Again, applying rational basis scrutiny, Judge Young concludes:
Defendants proffer that the state refuses to recognize same-sex marriages because it conflicts with the State’s philosophy of marriage – that is that marriage is to ameliorate the consequences of unintended children. Recognizing the valid same-sex marriages performed in other states, however, has no link whatsoever to whether opposite-sex couples have children or stay together for those children. Thus, there is no rational basis to refuse recognition and void out-of-state, same-sex marriages.
Judge Young's opinion is economical (at 36 pages), well-structured, and well-supported with relevant citations. Judge Young did not issue a stay of his opinion. One assumes that such a decision may be sought from the Seventh Circuit.
June 25, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Full Faith and Credit Clause, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
In a divided decision, the Tenth Circuit opinion in Kitchen v. Herbert held that the
Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that [Utah's state constitution's] Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny.
Affirming the district court's decision as well as its analysis, the Tenth Circuit panel majority, authored by Judge Carlos Lucero, and joined by Judge Jerome Holmes, applied strict scrutiny because it found that the "right to marry is a fundamental liberty."
In applying strict scrutiny, the panel majority assumed that three of the four interests advanced by the government - - - (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction” - - - were compelling. However, the court found that the means chosen - - - the prohibition of same-sex marriage - - - did not sufficiently serve these interests. Instead, each of the
justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples.
The court noted that Justice Scalia, dissenting in Windsor, and numerous district judges, reached a similiar conclusion. The majority observed that the lack of narrow tailoring is "often revealed" by underinclusiveness, finding it important that Utah did not ban nonprocreative marriages.
The court's analysis of each of the three rationales is substantial and erudite, firmly rooted in precedent and well-reasoned.
As to the fourth and final interest asserted by the government - - -“accommodating religious freedom and reducing the potential for civic strife,” - - - the court reasoned that "the Supreme Court has repeatedly held that public opposition cannot provide cover for a violation of fundamental rights" and emphasized that its "decision relates solely to civil marriage."
Dissenting from the more than 60 page majority opinion, Judge Paul Kelly wrote more than 40 pages in disagreement (although he did agree with the majority on the standing issue, making the opinion concurring in part). Not surprisingly, he disagreed with the level of scrutiny to be applied; he concluded that there was no fundamental right at issue and would have applied rational basis scrutiny. Also not surprisingly, he would have concluded that Utah's ban on same-sex marriage satisfied this most easily satisfied level of scrutiny given the state's interests in (1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area.
More surprisingly, Judge Kelly found that the Supreme Court's per curiam dismissal in 1972 of Baker v. Nelson, for "want of a substantial federal question" controlling ; it "should foreclose the Plaintiffs’ claims, at least in this court," notwithstanding the Court's decision invalidating the federal Defense of Marriage Act's ban on recognition of same-sex marriage last term in Windsor.
If - - and most probably when - - - the United States Supreme Court does consider the issue of state laws banning same-sex marriage, Baker v. Nelson will be irrelevant and the Court will directly grapple with issues if fundamental constitutional rights and levels of scrutiny under the Fourteenth Amendment's due process and equal protection doctrines.
Given that the Tenth Circuit stayed its decision pending the disposition of any subsequently filed petition for certiorari it may be that both sides seek review from the United States Supreme Court,
June 25, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)
Wednesday, June 18, 2014
In an extensive opinion today in Blackhorse v. Pro-Football, Inc., Cancellation No. 92046185, a divided Trademark Trial and Appeal Board canceled the trademark of the term "redskins" as violative of section 2(a), 15 U.S.C. § 1052(a), prohibiting registration of marks that may disparage persons or bring them into contempt or disrepute.
The majority opinion relied upon dictionary definitions, expert opinions, and surveys to conclude that the term is disparaging - - - and was so at the time the trademark was approved. The majority rejected the laches defense in part because "there is an overriding public interest in removing from the register marks that are disparaging to a segment of the population beyond the individual petitioners."
Judge Bergsman's dissenting opinion disagreed with the
majority’s decision to grant the petition on the claim of disparagement because the dictionary evidence relied upon by the majority is inconclusive and there is no reliable evidence to corroborate the membership of National Council of American Indians.
To be clear, this case is not about the controversy, currently playing out in the media, over whether the term “redskins,” as the name of Washington’s professional football team, is disparaging to Native Americans today. The provisions of the statute under which the Board must decide this case – §§ 2(a) and 14(3) of the Trademark Act, 15 U.S.C. §§ 1052(a) and 1064(3) – require us to answer a much narrower, legal question: whether the evidence made of record in this case establishes that the term “redskins” was disparaging to a substantial composite of Native Americans at the time each of the challenged registrations issued.
Neither the majority or dissenting opinion - - - both of which are lengthy - - - engage with the possible First Amendment free speech issues or with the possible Equal Protection issues; this is decidely a case interpreting a statutory provision regarding trademark.
Yet the constitutional contours of speech and equality are evident in both opinions, just as constitutionalism has been implicated in the controversies surrounding the use of the term. Thus, while a "trademark case," Blackhorse v. Pro-Football, Inc. is worth consideration by constitutional students and scholars. And its comparison to the "dykes on bikes" trademark case, which I've discussed here, is also worth consideration by those interested in constitutionalism, democracy, and language.
Thursday, June 12, 2014
Seattle - - - a "progressive and expensive city" - - - "struck a blow against rising income inequality" by raising its municipal minimum wage to $15 per hour earlier this month, as Maria La Ganga reported in the LA Times. Seattle Ordinance 12449 becomes effective in 2015, with a phase-in schedule of pay rates dependent on type of employer. But it has already been challenged as unconstitutional.
The complaint in International Franchise Association, Inc. v. City of Seattle challenges the ordinance on a variety of constitutional grounds: (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment and state constitution, the state constitutional privileges or immunities provision, preemption under the Lanham Act (trademarks), the contract clauses of the federal and state constitutions, and the First Amendment.
A central issue in this complaint is the Ordinance's definitions of schedule 1 and schedule 2 employers as the definitions relate to franchises. As paragraph 50 provides:
The Ordinance provides that, for purposes of determining whether an employer is a Schedule 1 or Schedule 2 employer, “separate entities that form an integrated enterprise shall be considered a single employer ... where a separate entity controls the operation of another entity,” but this test applies only to a “non-franchisee employer.” Under the Ordinance, if a small franchisee is associated with a franchise network that employs more than 500 workers, the small franchisee is deemed a Schedule 1 Employer even if it is not part of an “integrated enterprise” as so defined.
Filed by Bancroft LLC and signed by Paul Clement, the pleading contains various arguments detailing why such a distinction is unconstitutional, largely revolving around the competitive disadvantage the ordinance will place on franchised and parent businesses by requiring higher wages.
LawProf David Ziff of University of Washington School of Law in Seattle has some helpful discussions of the complaint on his blog, including an overview and a specific discussion of the "classes of corporations" argument under the state constitution's privileges or immunities clause.
Certainly this is litigation to watch. And certainly cities across the United States that are considering similar measures will be looking closely. Cities are often rightly concerned with state constitutional powers of "home rule" allowing municpalities to vary from the state mandated wage; for example, the courts declared the 1964 attempted minimum wage raise from 1.25 to 1.50 in NYC to be beyond the powers of the city. But the Seattle challenge raises federal constitutional issues that are necessarily obvious.
June 12, 2014 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, Federalism, Privileges and Immunities, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 11, 2014
In a 16 page "tentative decision" in Vergara v. California, Los Angeles Superior Court Judge Rolf Treu has declared that the state tenure statutes for public school teachers violate the California Constitution's provisions on equal protection and provision of education.
The so-called "tenure statutes" challenged in the action are provisions of California's Education Code governing teacher employment, including
- permanent employment statute (§44929.21(b));
- dismissal statutes (§§ 44934; 44938(b)(l) and (2) and 44944);
- and a seniority statute, "Last In First Out" or "LIFO" statute (§44955).
The California constitutional provisions at issue include the state's equal protection clause in Article I §7, and the Article IX provisions relating to Education, including the "general diffusion of knowledge" section, §1 and the requirement that the legislature "shall provide for a system of common schools by which a free school shall be kept up and supported,"§5.
Judge Treu based his decision largely on equality grounds, but noted that the California Supreme Court had previously held education to be a fundamental right. Importantly, the judge found that the trial showed that "there are a significant number of grossly ineffective teachers currently active in California classrooms." Judge Treu also found, although did not elaborate, that there was a "disproportionate impact on poor and minority students." The judge applied strict scrutiny to the challenged statutes.
As to the permanent employment statute, Judge Treu found that it disadvantaged both students and teachers, noting that California's short time frame for tenure - - - less than two years - - - was an outlier: the vast majority of states (32) have a three year time frame.
Regarding the dismissal statutes, Judge Treu noted that dismissal of a teacher could take two to ten years and "cost $50,000 to $450,000," and that while due process for teachers was an "entirely legitimate issue" these statutes provided "uber due process." The judge found that the provisions were "so complex, time consuming and expensive" that the statutes violated the state constitutional equal protection rights of the student plaintiffs.
Likewise, Judge Treu found that the LIFO statute violated the state constitutional equal protection rights of the student plaintiffs. Judge Treu again noted that California was in a distinct minority of 10 states in which this seniority system was absolute and allowed no consideration of teacher effectiveness, with 20 states providing that seniority was a factor, and 19 states leaving the decision to the discretion of government.
Judge Treu's relatively brief decision followed a rather high profile trial financed by a tech entrepreneur. The opinion does not have a full discussion of the facts, especially those supporting the impact on poor and racial minority students.
Vergara is heir to cases such as San Antonio School District v. Rodriguez (1973), in which the United States Supreme Court rejected a challenge to school financing as disadvantaging students of color, and Edgewood Independent School District v. Kirby, in which the Texas Supreme Court found the school financing scheme unconstitutional under the state constitution, including a "general diffusion of knowledge" provision. Yet Vergara turns the focus from state resources to "bad teachers" and can tap into anti-teacher and anti-union and anti-government worker sentiments.
Judge Treu concludes his decision with an invocation of Alexander Hamilton's Federalist Paper 78 on separation of powers, noting that it is not the task of the judiciary to advise the legislature on a solution. But as the history of Texas' Edgewood Independent School District v. Kirby demonstrates, legislative solutions in school equality can have an extended career in the courts.
Most likely, Judge Treu's Vergara decision will itself be subject to further judicial interpretations in the appellate process.
Friday, June 6, 2014
Joining the federal judges who have declared unconstitutional their respective state laws banning same-sex marriage, Judge Barbara Crabb issued an 88 page opinion and order in Wolf v. Walker ruling that Art. XIII, § 13 of the Wisconsin Constitution prohibiting same-sex marriage "violates plaintiffs’ fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the United States Constitution" and that "any Wisconsin statutory provisions, including those in Wisconsin Statutes chapter 765, that limit marriages to a 'husband' and a 'wife,' are unconstitutional as applied to same-sex couples."
While Judge Crabb does not issue a stay, the opinion is not effective immediately. Instead, the plaintiffs have until June 16 to submit a proposed injunction, the defendants have a week to respond, and the Judge will consider the stay at that time - - - adding a specific allowance of the parties to address the application for a stay in light of the United States Supreme Court's refusal to grant a stay - - - just two days ago - - - in Geiger v. Kitzhaber.
Crabb's opinion is a scholarly treatment that seriously engages with seemingly all of the arguments raised by the state, the plaintiffs, and various amici. It echoes other judges who have reached similar results in relying upon Justice Scalia's dissenting opinions to support its conclusions. Judge Crabb also interestingly uses work by Maggie Gallagher, one of the founders of the anti-same-sex marriage group National Organizer for Marriage as a supporting citation for the importance of marriage as "essential to the pursuit of happiness." The range of her citations is impressive and although the opinion certainly has rhetorical flourishes, it is measured and substantive.
Her statement that marriage is a "fundamental right" is more nuanced in the conclusion to the due process analysis in opinion, which concludes:
that Wisconsin’s marriage amendment and the Wisconsin statutes defining marriage as requiring a “husband” and a “wife” significantly interfere with plaintiffs’ right to marry, so the laws must be supported by “sufficiently important state interests” that are “closely tailored to effectuate only those interests,” Zablocki [v. Redhail] 434 U.S. at 388, in order to survive constitutional scrutiny.
Regarding the level of scrutiny under the Equal Protection Clause, Judge Crabb finds that Supreme Court precedent - - - including Windsor - - - is not determinative and that Seventh Circuit precedent is similarly not determinative. The opinion therefore engages in an analysis of the classification under four factors: history of discrimination; ability to contribute to society the same as others; immutability; and political powerlessness. (Interestingly, Judge Crabb does not cite to Carolene Products). She ultimately concludes that heightened scrutiny (intermediate scrutiny) is appropriate, although she does "hedge her bets" a bit, writing that
regardless whether I apply strict scrutiny, intermediate scrutiny or some “more searching” form of rational basis review under the equal protection clause, I conclude that the marriage amendment and related statutes cannot survive constitutional review.
The opinion then seriously considers the by-now familiar asserted interests: tradition, procreation, optimal child-rearing, protecting the institution of marriage, proceeding with caution, and the less-oft explicit interest of "slippery slope." Not surprisingly, she finds none of them support the same-sex marriage ban.
Judge Crabb's opinion acknowledges the opinion's place in the current terrain of post-Windsor decisions. Not only does she address the recent cases, she also considers the social climate, with reference to one of the circuit judges who might well hear the case on appeal:
In light of Windsor and the many decisions that have invalidated restrictions on same-sex marriage since Windsor, it appears that courts are moving toward a consensus that it is time to embrace full legal equality for gay and lesbian citizens. Perhaps it is no coincidence that these decisions are coming at a time when public opinion is moving quickly in the direction of support for same-sex marriage. Compare Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should Decide? 95 Mich. L. Rev. 1578, 1585 (1997) (“Public opinion may change . . . but at present it is too firmly against same-sex marriage for the courts to act.”), with Richard A. Posner, “Homosexual Marriage—Posner,” The Becker-Posner Blog (May 13, 2012) (“[T]he only remaining basis for opposition to homosexual marriage . . . is religious. . . . But whatever the [religious objections are], the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims.”).
This case is most likely going to the Seventh Circuit - - - and it or one of its sister-opinions - - - is most likely headed to the Supreme Court.
Thursday, May 22, 2014
CALL FOR PAPERS & PARTICIPATION ClassCrits VII
Poverty, Precarity, and Work:
Struggle and Solidarity in an Era of Permanent(?) Crisis
U.C. Davis School of Law November 14-15, 2014
From the call:
"This year marks the 50th anniversary of the enactment of the Civil Rights Act of 1964, President Johnson’s declaration of a “War on Poverty,” and the establishment of the first Neighborhood Legal Services Program pilot in Washington, D.C. Each of these initiatives attempted to address problems of structural economic inequality—problems that remain with us nationally and internationally . The seventh meeting of ClassCrits will focus on work, poverty, and resistance in an age of increasing economic insecurity.
In law, it is generally easier to discuss “poverty” than to look deeply into its causes and incidents—including income and wealth inequality, the close interaction of class and race in America, and the connections between gender and economic hardship. It is also easier to discuss “poverty” than what some scholars call “precarity”—the increasing vulnerability of workers, even those above the official poverty line, to disaster. Precarity has both economic and political roots. Its economic sources include the casualization of labor, low wages, persistently high unemployment rates, inadequate social safety nets, and constant vulnerability to personal financial catastrophes. Its political sources include the success of neoliberal ideology, upward redistribution of wealth, increasing polarization and dysfunction in Congress, and the dependence of both political parties on a steady stream of big money. Precarity is also not limited to the United States, but is reshaping space around the globe. While the aftermath of the housing bubble and subsequent foreclosures drain home values across America and strip equity disproportionately from minority neighborhoods, in developing-country “megacities,” millions of slum-dwellers are displaced to make way for high-end residential and commercial real estate developments.
Finally, this conference focuses on challenging structural forms of inequality from a place of compassion and creating possibilities for resilience. In the words of Martin Luther King, Jr., "True compassion is more than flinging a coin to a beggar. It comes to see that an edifice that produces beggars needs restructuring.” In this spirit, ClassCrits VII will explore the risks, uncertainty, and structural challenges of this period and discuss possibilities for shared goals and new forms of resistance."
More details here.
Tuesday, May 20, 2014
In his opinion in Whitewood v. Wolf, Judge John E. Jones, III, announced that Pennsylvania would "join the twelve federal district courts across the country" that had declared their respective same-sex marriage bans unconstitutional.
The judge considered both a Due Process and Equal Protection challenge to Pennsylvania's statutory ban on same-sex marriage and found both had merit.
Regarding due process, he concluded that
the fundamental right to marry as protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution encompasses the right to marry a person of one’s own sex. . . . that this fundamental right is infringed upon by 23 Pa. C.S. § 1102, which defines marriage as between one man and one woman and thus precludes same-sex marriage. Accordingly, 23 Pa. C.S. § 1102 is unconstitutional.
Judge Jones' equal protection analysis first considered the proper level of scrutiny for sexual orientation and after extensive discussion of the factors (a modified Carolene Products analysis), he concluded that sexual orientation classifications are quasi-suspect and deserve heightened scrutiny. The application of this standard is relatively brief:
Significantly, Defendants claim only that the objectives are “legitimate,” advancing no argument that the interests are “important” state interests as required to withstand heightened scrutiny. Also, Defendants do not explain the relationship between the classification and the governmental objectives served; much less do they provide an exceedingly persuasive justification. In essence, Defendants argue within the framework of deferential review and go no further. Indeed, it is unsurprising that Defendants muster no argument engaging the strictures of heightened scrutiny, as we, too, are unable to fathom an ingenuous defense saving the Marriage Laws from being invalidated under this more-searching standard.
Resembling many of the other opinions, including yesterday's opinion from an Oregon federal judge, Judge Jones' 39 page opinion acknowledges its part in a growing trend, cites all the other federal cases, includes a reference to Scalia's dissenting opinion in Windsor to support its rationale, and includes an acknowledgement of the divisiveness of the issue but invokes a historical perspective (represented by Plessy v. Ferguson and Brown v. Board of Education) in its relatively brief conclusion.
It differs from other similar opinions in explicitly resting its Equal Protection analysis in intermediate scrutiny befitting a quasi-suspect class.
But the doctrinal differences are less noteworthy than the tide of federal judges (and some state judges) striking down their state laws banning same-sex marriage.
Monday, May 19, 2014
Joining a decided trend which we last discussed here and here, today Oregon District Judge Michael McShane declared unconstitutional the state’s same-sex marriage prohibition in Article 15 of the state constitution. Judge McShane’s 26 page opinion in Geiger v. Kitzhaber concludes that because “Oregon’s marriage laws discriminate on the basis of sexual orientation without a rational relationship to any legitimate government interest, the laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.”
Judge McShane noted that the state defendants “concede that Oregon's marriage laws banning same-gender marriage are unconstitutional and legally indefensible, but state they are legally obligated to enforce the laws until this court declares the laws unconstitutional,” and thus, the case “presents itself to this court as something akin to a friendly tennis match rather than a contested and robust proceeding between adversaries.” However, McShane did not find (or analyze) any Article III “case or controversies” issues, or address standing (including defendant standing).
Judge McShane notes that last term’s decision in Windsor v. United States finding DOMA unconstitutional
may be distinguished from the present case in several respects. Yet, recounting such differences will not detract from the underlying principle shared in common by that case and the one now before me. The principle is one inscribed in the Constitution, and it requires that the state's marriage laws not "degrade or demean" the plaintiffs in violation of their rights to equal protection.
Unlike Justice Kennedy’s opinion for the Court in Windsor, however, Judge McShane’s opinion in Geiger is quite specific regarding the level of scrutiny being applied: rational basis. McShane rejected two arguments for intermediate scrutiny. First, he rejected the argument based upon a gender classification, concluding that the “targeted group here is neither males nor females, but homosexual males and homosexual females” and thus the state's marriage laws discriminate on the basis of sexual orientation, not gender. Second, he rejected the applicability of the Ninth Circuit’s opinion in SmithKline Beecham Corp. v. Abbott Labs, reasoning that the panel's decision in SmithKline is not yet a truly final and binding decision given that the mandate has not issued pending en banc review. (Recall that last week, a federal district judge in Idaho found "SmithKline’s examination of Windsor is authoritative and binding").
Judge McShane then engaged in the by now familiar analysis of government interests - - - including protecting traditional marriage and promoting responsible procreation - - - and their relationship to the same-sex marriage prohibition. Like his fellow judges in recent cases, Judge McShane found rational basis is not satisfied.
And like some of his fellow judges, McShane shared his personal perspective. McShane's provided his in an extended conclusion:
I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage (and thereby expanding the benefits and rights that accompany marriage) to gay and lesbian families. It was these same objections that led to the passage of Measure 36 in 2004 [the ballot measure defining marriage as only between a man and a woman]. Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder, or a mortal sin. I remember that one of the more popular playground games of my childhood was called "smear the queer" and it was played with great zeal and without a moment's thought to today' s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing. It was but 1~86 when the United States Supreme Court justified, on the basis of a"millennia of moral teaching," the imprisonment of gay men and lesbian women who engaged in consensual sexual acts. Bowers, 478 U.S. at 197 (Burger, C.J., concurring), overruled by Lawrence, 539 U.S. at 578. Even today I am reminded ofthe legacy that we have bequeathed today's generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says "dad ... that is so gay."
It is not surprising then that many of us raised with such a world view would wish to protect our beliefs and our families by turning to the ballot box to enshrine in law those traditions we have come to value. But just as the Constitution protects the expression of these moral viewpoints, it equally protects the minority from being diminished by them.
It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading "God Hates Fags" make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities.
My decision will not be the final word on this subject, but on this issue of marriage I am struck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.
Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise.
Judge McShane's opinion ends with a exhortation perhaps more befitting religious rhetoric than legal analysis.
May 19, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Fourth Amendment, Interpretation, Jurisdiction of Federal Courts, Opinion Analysis, Reproductive Rights, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Friday, May 16, 2014
The Arkansas Supreme Court's Order in Smith v. Wright grants a stay of the injunction against enforcing the ban on same-sex marriages.
Recall that last Friday, Circuit Judge Charles Piazza in Wright v. Arkansas declared unconstitutional Arkansas Act 144 and Arkansas Amendment 83, both of which define marriage as limited to one man and one woman.
Judge Piazza later issued a clarifying order and there have been numerous procedural matters to resolve. Today's order by the Arkansas Supreme Court Justices (pictured below) grants the request for an emergency stay without opinion.
A full appeal will presumably follow.