Friday, January 4, 2013
In September, the Ninth Circuit rendered its opinion in McCormack v. Hiedeman regarding the constitutionality of Idaho's "unlawful abortion" statutes that makes it a felony for any woman to undergo an abortion in a manner not authorized by statute. McCormack had been charged by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet. The court held that imposing a criminal sanction on a woman poses an undue burden under Casey, but the decision was restricted to McCormack given the absence of class certification.
But who is Jennie Linn McCormack? And how common is procuring abortion "medications" via the internet?
Journalist Ada Calhoun's cover article in this month's The New Republic, "The Rise of DIY Abortions," paints a vivid portrait of Jennie Linn McCormack, as well as her attorney ("an avid fan of The Girl with the Dragon Tattoo books. He saw the character of dogged reporter Mikael Blomkvist as a good role model for a lawyer. . . ").
Calhoun also contextualizes McCormack's situation:
Determining how many American women have had home abortions is
exceedingly difficult: The Centers for Disease Control and Prevention
does not track illegal abortions. There is no blood test for drugs like
Cytotec, and so such an abortion is indistinguishable from a natural
miscarriage, even to a doctor. However, the proliferation of online
dispensers suggests a rising demand. There are thousands of websites
selling Cytotec for as little as $45 to $75 (compared with $300 to $800
for a legal medicated abortion in a clinic). Some claim to offer the
harder-to-come-by Mifeprex, but may in fact be peddling Cytotec, or
aspirin, or nothing at all. (Possible sources for the drugs include
Mexico, where Cytotec is available over the counter, or even the United
States, since it’s also prescribed here as an ulcer medication.)
The question of how drugs like Mifeprex and Cytotec are sold and administered is emerging as the next major front in the abortion debate.
Calhoun's article is a must-read for anyone teaching, writing, or thinking about abortion and is sure to be discussed at the many conferences devoted to Roe v. Wade's 40th anniversary, such as this one at the NYC Bar.
January 4, 2013 in Abortion, Current Affairs, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Recent Cases, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Monday, January 14, 2013 6:30 pm-8:00 pm
2013 marks the 40th anniversary of Roe v. Wade, establishing the constitutionally-protected right to abortion. This program will discuss the evolution of the right to abortion in the courts, public opinion, and political discourse since then and will address the current status of reproductive rights in the United States, including its role in the 2012 presidential election.
Moderator: PRISCILLA SMITH, Senior Fellow at the Information Society Project at the Yale Law School
LOUISE MELLING, Director, ACLU Center for Liberty
RUTHANN ROBSON, Professor of Law & University Distinguished Professor, CUNY School of Law
KATHLEEN MORRELL, MD, Physicians for Reproductive Choice and Health
JESSICA GONZALEZ-ROJAS, Executive Director, National Latina Institute for Reproductive Health
BEBE ANDERSON, Director, U.S. Legal Program, Center for Reproductive Rights
Sponsors: Sex and Law Committee, Pamela Zimmerman, Chair
More information here.
Thursday, January 3, 2013
The Supreme Court of the United States has updated its website to include a page entitled "Filings in the Defense of Marriage Act and California’s Proposition 8 cases," or "DOMPRP8."
The disclaimer is worth a look:
Disclaimer: We have provided a link to this site because it has information that may be of interest to our users. The Supreme Court of the United States does not necessarily endorse the views expressed or the facts presented on this site.
Wednesday, December 26, 2012
In her role as Circuit Justice for the Tenth Circuit, Justice Sonia Sotomayor today rejected an application for an injunction pending appellate review from Hobby Lobby. In her brief order in Hobby Lobby Stores, Inc. v. Sebelius, Sotomayor ruled that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."
Recall that in November, an Oklahoma district judge stressed that Hobby Lobby, an arts and crafts store chain operating in 41 states, as well as its co-plaintiff, the Mardel corporation, were secular for-private corporations that did not possess free exercise of religion rights under the First Amendment. Judge Joe Heaton therefore denied the motion for a preliminary injunction regarding their First Amendment objections to complying with contraceptive requirements under the Patient Protection and Affordable Care Act.
Sotomayor notes that the Tenth Circuit refused to issue a stay pending appeal and she saw no reason to depart from that conclusion: "Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts. Following a final judgment, they may, if necessary, file a petition for a writ of certiorari in this Court."
December 26, 2012 in Courts and Judging, Current Affairs, Family, First Amendment, Free Exercise Clause, Gender, Opinion Analysis, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)
Saturday, December 22, 2012
In a one page order yesterday, the Ninth Circuit issued an injunction pending appeal in Pickup v. Brown, enjoining California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18.
SB1172, slated to become effective January 1, had been enjoined earlier this month by Senior District Judge William Shubb in Welch v. Brown. In this appeal, David Pickup, "a licensed Marriage and Family Therapist whose practice is almost exclusively devoted to counseling clients, including minors, who have unwanted same-sex attractions," and the other plaintiffs, including NARTH, the National Association for Research and Therapy of Homosexuality, argued in their emergency motion (with extensive attachments) that the district judge's denial of a preliminary injunction created an intra-district conflict given Judge Shubb's preliminary injunction as to the plaintiffs in that case.
Thus, SB 1172 is clearly enjoined throughout California and the First Amendment arguments will be heard by the Ninth Circuit in 2013.
Thursday, December 13, 2012
The Court's grant of certiorari last week in two same sex marriage cases included the question of standing in both.
The standing issues atypically arise not from the original plaintiffs' qualifications under Article III of the Constitution, but flow from the governments' decision not to defend the constitutionality of the challenged government action: California's refusal to defend Proposition 8 in Perry v. Brown and the Obama Administration's decision not to defend DOMA in Windsor (and in previous cases beginning in February 2011).
The inimitable Linda Greenhouse shares her analysis of the standing issues, admitting she is fascinating by the "procedural game the Supreme Court is playing in the same-sex marriage cases."
Greenhouse writes in the NYT Opinionator that her original thought was that the Court could be using "the jurisdictional issue as a kind of safety valve for a deeply polarized court."
But on reflection, that theory doesn’t really make sense, because a finding of no jurisdiction under these circumstances would call into question the court’s ability to deal with other instances of changed government positions, and would be inconsistent with the action the court took just last week in the prison immunity case. Further, a finding of no jurisdiction would amount to a huge grant of power to the executive branch at the expense of Congress, enabling the president to cut off further judicial review any time a law that he never liked in the first place is declared unconstitutional by a lower court. While executive power certainly has its fans on the court, including Chief Justice Roberts and Justice Antonin Scalia, I’d be surprised if that sweeping proposition could capture five votes.
Greenhouse then provides some her own hypothesis - - - and it is certainly worth a read.
Tuesday, December 11, 2012
Writing in the New Republic today, Jeffrey Rosen focuses on the presumably central role Justice Anthony Kennedy (pictured) will play in the ultimate decision on the two same-sex marriage cases granted certiorari last Friday.
Regarding precedent, Rosen writes:
Moreover, regardless of what Roberts thinks of Kennedy’s opinions in Romer and Lawrence, they’ve been on the books for years and it’s impossible to uphold DOMA or Prop 8 without also overturning Kennedy’s holding that preserving tradition for its own sake isn’t a permissible basis for laws that discriminate against gays and lesbians.
Rosen's is only one of the tidal wave of commentators who have proffered predictions and analysis. An excellent collection is in Monday's SCOTUSBlog round-up by Marissa Miller.
Tuesday, December 4, 2012
California's SB 1172, slated to become effective January 1 and prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18. Senior District Judge William Shubb, in an opinion issued late yesterday in Welch v. Brown, has issued a temporary injunction of the statute.
Considering the claims of two therapists and one potential therapist who had undergone SOCE as an adult, Judge Shubb first held that the plaintiffs did not have third party standing to assert the claims of minors or parents. As to the therapists, however, Judge Shubb held that their First Amendment claims were entitled to strict scrutiny which they were unlikely to survive on the merits.
In so doing, Judge Shubb rejected the argument that lesser standards under the First Amendment should apply given that the regulation was directed at a profession. Additionally, the judge rejected the argument that the regulation was directed at conduct rather than speech, holding that because "at least some forms" of SOCE involve "talk therapy," speech was the central issue.
Supporting the conclusion that strict scrutiny was the correct standard, Judge Shubb focused on the legislative history of SB1172: the "Legislature’s findings and declarations convey a consistent and unequivocal message that the Legislature found that SOCE is ineffective and harmful."
Below is a video of the legislative floor statement of the bill's sponsor, Senator Ted Lieu, and the subsequent vote:
For Judge Shubb, because "a mental health provider’s pursuit of SOCE is guided by the provider’s or patient’s views of homosexuality, it is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality." Thus, Judge Shubb concluded that the statute was undoubtedly subject to strict scrutiny.
In addition to Ninth Circuit precedent, Judge Shubb relied heavily upon the Supreme Court's 2011 decision in Brown v. Entertainment Merchants Ass’n, finding unconstitutional California's violent video game sale to minors prohibition. Quoting from Entertainment Merchants, Judge Shubb stressed that SB1172 cannot survive strict scrutiny "unless the state demonstrates an “'actual problem’ in need of solving” and “a direct causal link” between SOCE and harm to minors. While protecting minors was a compelling state interest, Judge Shubb faulted the legislative findings:
evidence that SOCE “may” cause harm to minors based on questionable and scientifically incomplete studies that may not have included minors is unlikely to satisfy the demands of strict scrutiny.
Judge Shubb also faulted the "underinclusiveness" of the statutory scheme:
Here, SB 1172 prohibits only mental health providers from engaging in SOCE and, as defendants have pointed out, unlicensed individuals who do not qualify as “mental health providers” under the bill can engage in SOCE. If SOCE is harmful and ineffective, the harm minors will endure at the hands of unlicensed individuals performing SOCE is equal, if not greater,than the harm they would endure from mental health providers performing SOCE. In fact, the California Legislature has previously “recognized the actual and potential consumer harm that can result from the unlicensed, unqualified or incompetent practice of psychology.” [citation omitted] The limited scope of SB 1172 therefore suggests that it is likely underinclusive in its application only to mental health providers.
Given Judge Shubb's reasoning, it is likely that he will issue a permanent injunction and equally likely that the decision will be appealed to the Ninth Circuit.
Monday, December 3, 2012
Should the Court take certiorari in at least one of the circuit cases challenging DOMA, the Defense of Marriage Act, as is widely anticipated, the government interest will be at issue. Courtney Joslin's article, Marriage, Biology, and Federal Benefits, forthcoming in Iowa Law Review and available in draft on ssrn, is a must-read on the "responsible procreation" interest that is often proffered. Joslin (pictured) argues that this interest is based on what she calls the "biological primacy:" an "underlying premise that the government’s historic interest in marriage is to single out and specially support families with biologically-related children."
Joslin's task is decidely not to assess the "fit" of DOMA's means chosen to this interest, under any equal protection standard, whether it be intermediate scrutiny as some, including the Second Circuit in Windsor have applied, or rational basis as the First Circuit applied.
Instead, Joslin interrogates whether this interest is factually true: "Has the federal government historically accorded special solicitude and protection to families comprised of parents and their own biological children?" She demonstrates that the interest is, at the very least, not a consistent one. She examines the "history of federal family-based benefits in two areas: children’s Social Security benefits and family-based benefits for veterans and active members of U.S. military," and demonstrates that in a "vast array of federal benefits programs, eligibility is not conditioned on a child’s biological connection with his or her parent."
From the early years of federal family-based benefits, Congress both implicitly and explicitly extended benefits to children who were biologically unrelated to one or both of their parents. This unearthed history exposes that responsible procreation is based on normative judgments about sexual orientation and gender, not history and tradition.
Indeed, although Joslin does not discuss Loving v. Virginia, her article is deeply reminiscent of the Court's reasoning in Loving when it essentially rejected Virginia's proffered rationale of "racial integrity," with Chief Justice Warren writing that the "fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy." Joslin's article should be required reading for anyone analyzing DOMA.
Friday, November 30, 2012
As the news is filled with the expected decision from the United States Supreme Court on whether - - - and if so, in what constellation - - - to grant certiorari on the issue of same-sex marriage, including both Proposition 8 and DOMA, Lyle Denniston's excellent discussions at SCOTUSBlog are a welcome resource.
But equally vital is Tobias Barrington Wolff's recent brief remarks, to be as an essay in Fordham Law Review entitled Collegiality and Individuality Dignity, and available on ssrn, that discusses the more personal aspects of the issues for some ConLawProfs.
Wolff (pictured) explores the "deep tension that exists for LGBT scholars and lawyers who work" on issues of same-sex marriage and other sexuality issues, "between principles of collegiality and basic principles of individual and human dignity." For example, "there is this seeming willingness on the part of antigay advocates to go around calling LGBT people unfit parents, and to expect to be treated with courtesy in response. I’ve been doing this for a dozen years, and I have to tell you, in very personal terms: I’m getting a little tired of being courteous in response to this kind of argument."
I’ll just say quickly: One can refuse to engage with these arguments and the people who make them, which is a choice that some LGBT scholars make and is a choice that has obvious costs associated with it. One can continue engaging in a collegial fashion, which is the choice that I have made for most of my career, but carries serious individual costs. Or one can engage with a somewhat sharper- edged critique of the nature of the arguments that are being made, which is part of what, of course, I am doing today, which has its own set of costs and disruptions of the normal collegial atmosphere about it. I acknowledge that.
But I think that the impact upon the individual dignity of LGBT scholars from having to confront these ugly, ugly arguments over and over again is something that needs to be acknowledged as one of the central, central dynamics that warrants attention in conversations about these issues.
Wolff's worth-reading essay is situated in the context of scholarly discourse, but many ConLawProfs experience similar dynamics in the classroom. How do we discuss these arguments and issues without assaulting each other's dignity?
Tuesday, November 20, 2012
District Judge to Hobby Lobby: No Substantial Burden on Religious Beliefs re: ACA Contraception Compliance
The contraception provision requirement of the ACA continues to foment litigation. However, unlike last week's decision by a federal district judge granting the preliminary injunction in favor of Tyndale House Publishers, a small Christian publishing house, yesterday a federal district judge denied a preliminary injunction sought by Hobby Lobby, a privately held corporation operating 514 arts and crafts stores in 41 states regarding the so-called "morning after" or "Plan B" contraceptive pill.
In a 28 page opinion, Judge Joe Heaton of the Western District of Oklahoma, denied Hobby Lobby's claims, as well as the claims by Mardel, a Christian supply and bookstore chain; both corporations are owned by the Green family through a management trust. Interestingly, much of the judge's analysis revolves around the identity of the plaintiffs as it relates to whether their First Amendment and RFRA are being violated.
Denying the preliminary injunction, Judge Heaton concluded:
Plaintiffs have not demonstrated a probability of success on their First Amendment claims. Hobby Lobby and Mardel, secular, for- profit corporations, do not have free exercise rights. The Greens do have such rights, but are unlikely to prevail as to their constitutional claims because the preventive care coverage regulations they challenge are neutral laws of general applicability which are rationally related to a legitimate governmental objective.
Plaintiffs also have failed to demonstrate a probability of success on their Religious Freedom Restoration Act claims. Hobby Lobby and Mardel are not “persons” for purposes of the RFRA and the Greens have not established that compliance with the preventive care coverage regulations would “substantially burden” their religious exercise, as the term “substantially burdened” is used in the statute. Therefore, plaintiffs have not met their prima facie burden under RFRA and have not demonstrated a probability of success as to their RFRA claims.
The applicability of free exercise rights and RFRA rights to corporations is resoundingly rejected by Judge Heaton. His analysis as to the persons involved does, in part, depend upon their attentuated relationship to the entities subjected to the ACA requirements.
Wednesday, November 14, 2012
Adultery has been dominating the news, including questions about whether or not it can "still be a crime." As a constitutional matter, any answer must invoke the Court's 2003 decision in Lawrence v. Texas. Recall that Justice Scalia, dissenting, in Lawrence wrote that:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' [v. Hardwick] validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.
As Scalia recognized, Lawrence "calls into question" the criminalization of adultery. It would be very unlikely a law criminalizing adultery would survive a constitutional challenge after Lawrence.
But is the military different? Military courts held that consensual adult sodomy - - - the same crime at issue in Lawrence - - - could be criminalized as a military matter, despite Lawrence, although the application of the consensual sodomy provision could be unconstitutional as applied in certain circumstances. The central inquiry was whether there were "factors unique to the military environment" that allowed the acts to be constitutionally criminalized.
Writing in 2010, law student Katherine Annuschat, in her comment, An Affair to Remember: The State of the Crime of Adultery in the Military, 47 San Diego L. Rev. 1161, demonstrates "the military's willingness to pursue adultery prosecutions for questionable motives," and argues that "the obsolescence of these statutes in the public mind" and their questionable constitutional pedigree support removal of adultery from the enumerated offenses under the general Uniform of Military Justice article 134. Similarly, writing a year earlier, attorney Christopher Scott Maravilla, in The Other Don't Ask, Don't Tell: Adultery Under the Uniform Code of Military Justice After Lawrence v. Texas, 37 Capital U. L. Rev. 659 (2009) concluded that the criminal sanctions for adultery, as well as sodomy, should be "constructively" removed from military laws, although sexual acts could be relevant to other violations of the military code of conduct.
It is doubtful that adultery - - - without more - - - can be constitutionally criminalized, even in the military context. But perhaps there is always "more."
[image: 1926 movie poster via]
Thursday, September 20, 2012
From the SCOTUSBlog same-sex marriage symposium, discussing how the Supreme Court should rule if the Court accepts Perry (the Proposition 8 case) or any of the DOMA cases, including Massachusetts v. United States Department of HHS and Gill v. Office of Personnel Management:
The suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor. While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality. Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.
Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions. This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden. However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.
The full post is here.
Tuesday, September 4, 2012
Forida Federal Judge: State Tuition Differential for Students of Immigrant Parents Denies Equal Protection
U.S. District Judge K. Michael Moore held unconstitutional Florida regulations that classify U.S. citizen students who reside in Florida as "out of state" residents according to their parents' undocumented federal immigration status in the opinion in Ruiz v. Robinson. (Additional documents are available from Southern Poverty Law Center).
Applying established Equal Protection doctrine, Judge Moore concluded that such regulations do not "advance any legitimate State interest, much less the State's important interest in furthering educational opportunities for its own residents." In the relatively brief opinion, Judge Moore extensively discussed Plyler v. Doe, 457 U.S. 202 (1982), distinguishing it because it involved primary education (although university education was more essential than it was twenty years ago), and because the plaintiffs in Plyler were undocumented immigrants while the plaintiffs in Ruiz are themselves citizens. Judge Moore applied heightened scrutiny under the Equal Protection Clause - - - requiring the classification to be "substantially related" to "important governmental objectives" - - - because "in a very real way the regulations punish the citizen children for the acts of their parents."
According to Judge Moore, essentially the Florida regulations "classify U.S. citizens as aliens, and in doing so, create a second-tier of U.S. citizenship that depreciates the historic values of Plaintiffs' citizenship by affording Plaintiffs some of the benefits that other similarly situated U.S. citizens enjoy but not all of the benefits." Judge Moore rejected Florida's proffered cost interest by observing that Florida mistakenly argued that by offering in-state tuition to Florida residents with undocumented parents it would be forced to offer in-state tuition to non-Florida residents. Moore made this clear in the opinion:
Indeed, nothing herein should be construed so as to preclude the State of Florida from requiring proof of Florida residency from a dependent U.S. citizen student and the student's parents in order to classify the student as a resident or non-resident for tuition and other related purposes, only that a U.S. citizen student who resides in, and whose parent resides in Florida cannot be denied in-state residency based on a parent's inability to provide proof of his or her federal immigration status.
In an apropos use of student scholarship, Judge Moore cites Michelle J. Seo, Note, Uncertainty of Access: U.S. Citizen Children of Undocumented Immigrant Parents and In-State Tuition for Higher Education, 44 COLUM. J.L. & Soc. PROBS. 311, 316 (2011).
[image: Miami-Dade College opening, circa 1970, via]
Thursday, August 16, 2012
A complaint filed by the ACLU in Doe v. Wood County Board of Education argues that the mandated sex-segregated education practices of Van Devender Middle School in Parkersburg, West Virginia violate the Fourteenth Amendment's Equal Protection Clause as well as Title IX.
The complaint alleges not only that the school separates children by gender, but that the educational practices in the sex-segregated classrooms are different. This is based on teacher-training that posits the differences between children based upon sex. Girls do not like stress; boys do. Girls like warmer rooms; boys cooler. Girls like to be face-to-face; boys learn better in rows. Girls learn better when their movement is minimized and their rooms are darker; boys "need" to move and have light.
But despite the school's motto - - - "where gender matters" - - - the complaint makes allegations that gender should not be the only thing that matters. For example:
Anne Doe is legally blind and has difficulty reading in the girls’ classroom, which is kept dimmer than the boys’ classroom. Anne would benefit from brighter lights to enable her to read more easily during class, but she has not been permitted that option. When Anne asked her teachers to brighten the lights to accommodate her vision problems, her teachers refused and told her to move closer to the window.
The complaint alleges that "Sex is an imprecise proxy for psychological, learning, emotional and developmental differences in adolescents." The complaint also stresses that sex-segregation and sex-differntial teaching "harm children who do not conform to the gender stereotypes advanced in these classes, such as boys who would happily engage in a conversation about literary characters’ emotions or girls who need to move around," and thus harm children.
Although the complaint followed the usual practice and did not cite any cases, including United States v. Virginia (VMI), the complaint's allegations fit squarely within the VMI rubric. While VMI is often recalled as involving the exclusion of women from the Virginia Military Academy, Virginia had instituted sex-segregated education. In VMI, Virginia's argument was that the Virginia Women's Institute for Leadership (VWIL), at Mary Baldwin College, satisfied equal protection concerns by offering women a "cooperative method" that would be better suited to women and reinforce their self-esteem rather than VMI's "adversative method," suited for male citizen-soldiers. Justice Ginsburg, writing for the Court, rejected this sort of stereotyping and generalizations about "the way women are."
Indeed, if the allegations of the complaint prove true, it will be difficult for the school to argue that it is not engaging in the type of stereotyping and generalizations about "the way" girls - - - and boys - - - are that was rejected by the Court in VMI.
[image: "Trouble in the classroom" by August Heyn, circa 1920]
Sunday, August 12, 2012
In in an opinion exceeding 100 pages, Judge Alan Kay, Senior District Judge for the District of Hawai'i, upheld the Hawai'i marriage scheme in Jackson v. Abercrombie. The plaintiffs had argued that Hawai'i Constitution Article 1, Section 23 stating that “[t]he legislature shall have the power to reserve marriage to opposite- sex couples,” and Hawaii Revised Statutes § 572-1, which states that marriage “shall be only between a man and a woman,” violated the Due Process and Equal Protection Clauses of the United States Constitution. Governor Abercrombie's Answer agreed with the plaintiffs' constitutional arguments. However, Defendant Fuddy, Hawai'i Director of Health, and Intervenor Hawai'i Family Forum, opposed the plaintiffs, and the Judge resolved the case on Summary Judgment.
Those conversant with same-sex marriage jurisprudence in the United States will recall that Hawai'i is a landmark in the second-generation litigation: In Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), the Hawai'i Supreme Court found the limitation of marriage to opposite-sex couples violated the state constitution. This decision prompted the state constitutional amendment, Article I, Section 3, referenced above (and interestingly in terms of judicial review, not prohibiting same-sex marriage but allocating that power only to the legislature and not to the courts). It also prompted Congress to pass DOMA - - - the Defense of Marriage Act - - - constitutionally suspect at present.
Judge Kay rehearses these histories at length. However, he rests his rejection of the plaintiffs' constitutional challenges on a "decision" of the first-generation of same-sex marriage litigation: The United States Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972) (mem.). For Judge Kay: "Baker is the last word from the Supreme Court regarding the constitutionality of a state law limiting marriage to opposite-sex couples and thus remains binding on this Court." (Opinion at 46).
Most courts considering the issue have rejected the 1972 summary dismissal in Baker v. Nelson as binding precedent. Thus, Judge Kay also provides an "alternative analysis" under the Equal Protection and Due Process Clauses. He applies rational basis review, concluding that "marriage" can be reserved to opposite-sex couples because the legislature can rationally choose to encourage the stability of relationships that have the ability to "procreate naturally" and choose to promote the raising of children by "a mother and a father." Judge Kay also credits the legislature's rational choice to "proceed with caution" in an area of social change:
Hawaii could rationally conclude that by enacting the reciprocal beneficiaries act, followed years later by the civil unions law, and retaining the definition of marriage as a union between a man and woman, it is addressing a highly-debated social issue cautiously. By doing so, it may observe the effect of the reciprocal beneficiaries and civil unions laws before deciding whether or not to extend the title marriage, along with the already conferred legal rights, to same-sex couples.
Yet Judge Kay's ultimate rejection goes further. He writes that "to suddenly constitutionalize the issue of same-sex marriage “would short-circuit” the legislative actions that have been taking place in Hawaii." (Opinion at 118). Certainly, the judicial restraint arguments are familiar by now, but to write in 2012 that the plaintiffs seek to "suddenly constitutionalize the issue of same-sex marriage" is odd. Indeed, it is undermined by Judge Kay's own opinion with its careful history of second-generation litigation since 1990 and his reliance on a summary dismissal in 1972.
The plaintiffs are doubtless preparing their appeal to the Ninth Circuit.
August 12, 2012 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Gender, Opinion Analysis, Reproductive Rights, Sexual Orientation, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)
Tuesday, July 31, 2012
In what is becoming a common occurence, a federal judge held section 3 of DOMA unconstitutional.
Today's opinion in Pedersen v. Office of Personnel Management, with BLAG (Bipartisan Legal Advisory Group of the House of Representatives) intervening to defend the law, is by Judge Vanessa Bryant of the United States District Court for the District of Connecticut.
Judge Bryant's thorough opinion, over 100 pages, treads by now familiar ground. Judge Bryant first rehearses the history ofthe Defense of Marriage Act (DOMA), standing, and the (in)applicability of the Supreme Court's summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972).
In applying Equal Protection doctrine to a classification based upon sexual orientation, the first task is to determine the level of scrutiny to be applied to sexual minorities. As Professor Julie Nice writes over at Jurist, this can put a court in a "dither" given the Supreme Court's "miminalism" on this issue.
But Judge Bryant attempted to be clear, both in her theoretical perspectives and doctrine. She first stated she "must not be tempted to tie conceptions of judicial restraint to historic notions of equality," but instead engage in a "rigorous examination of the fundamental meaning of the noble ideals established by our founding fathers as our guiding and enduring principles." (Opinion at 34-35). She then extensively applies the four common factors to determine whether a particular classification should be considered either a suspect or quasi-suspect class:
- (1) the history of invidious discrimination against the class burdened by the legislation;
- (2) whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society;
- (3) whether the distinguishing characteristics are ‘immutable’ or beyond the class members' control; and
- (4) the political power of the subject class.
Judge Bryant's opinion is especially worth reading on the "political powerlessness" prong in light of arguments regarding President Obama's opinions on sexual orientation. Having considered all four factors, the judge found that " homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny." She then quickly defaulted to another rationale: "However, the Court need not apply a form of heightened scrutiny in the instant case to conclude that DOMA violates the promise of the equal protection as it is clear that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny."
Thus, Judge Bryant applied rational basis scrutiny requiring a "legitimate interest" that is reasonably served by the statute. The legislative history of DOMA advanced four interests for the statute: "(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce governmental resources." In litigation, BLAG asserted five: 1) To employ caution in the face of a proposed redefinition of the centuries-old definition of marriage; 2) To protect the public fisc; 3) To maintain consistency and uniformity with regard to eligibility for federal benefits; 4) To avoid creating a social understanding of bearing, begetting, and rearing children separate from marriage; and 5) To recognize an institution designed to ensure that children have parents of both sexes. One by one, Judge Bryant considered the interests and their rational relationship to the statute, concluded that not one of them was sufficient.
Judge Bryant considers judicial review and the role of courts in a democracy at several points, and concludes:
"In sum, having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution."
Certainly this opinion will be appealed, as have the others, including three pending petitions in the United States Supreme Court. But with yet another federal judge finding DOMA unconstitutional, it would make a Supreme Court decision to the contrary look more and more problematical.
In a relatively brief opinion in Isaacson v. Horne, federal judge James Teilborg rejected constitutional challenges to Arizona House Bill 2036 (“H.B. 2036”), signed into law by the Governor in April 2012, restricting all abortions at 20 weeks of pregnancy or later, except in "medical emergency." The judge evaluated the legislative findings of "the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at [20 weeks] gestational age."
The opinion's reasoning largely rests on two extensive quotations. First, the judge quotes from Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 879-80 (1992), regarding the definition of “medical emergency,” concluding that the Arizona statute is within the broad definition. Second, the judge relied on Gonzales v. Carhart, 550 U.S. 124 (2007) and its description of one type of procedure. The judge then credited the legislature's fetal pain rationale, finding that "by 7 weeks gestational age, pain sensors develop in the face of the unborn child and, by 20 weeks, sensory receptors develop all over the child’s body and the children have a full complement of pain receptors." The judge did add that as an additional legitimate interest, the "instance of complications is highest after twenty weeks of 20 gestation" supported the interest in the pregnant woman's health.
The Center for Reproductive Rights will undoubtedly appeal.
Tuesday, June 19, 2012
ConLawProfs doing work on privatization might be interested in this CFP for a Vulnerability and Feminism Legal Theory Workshop.
From the organizers:
This workshop considers the growing trend in some countries to subordinate and often sacrifice children's interests (indeed all of our interests) to corporate interests claimed in the name of efficiency. This trend is represented by the proliferation of for-profit schools, hospitals, and prisons, and in corporate rights exemplified by the reach of commercial advertising into public schools -- from buses to corridors to cafeterias. Particularly in the U.S., the corporation reigns supreme. Politicians and policy makers increasingly accept markets as adequate mechanisms to allocate health, education, public safety, criminal justice, environmental protection, recreation, procreation, and other social goods, and they tend to consider "business" models as the superior means to do so. Corporate legal personhood protects as "speech" the allocation of corporate wealth to political and social causes that aggressively work against protective regulations of corporate activities. Advertising and social media driven by corporate interests create consumer demand for unhealthy and unnecessary products and use the mantra of parental "choice" as a subterfuge for gross profit-seeking. Corporate practices and "values" are adopted as relevant and beneficial to assessing the worth and success of public services, such as education and health care. What is the balance struck in other countries? Is it possible within a liberal legal order to challenge the assumptions that underlie privatization and the "corporatization" of society? Is it impossible to reorient and "humanize" the corporation by holding it legally responsible beyond shareholders and the market, using law to encourage responsiveness to the interests of children and other human beings?
The deadline for submissions is July 25, 2012. More info, including submission details, here.
Friday, June 8, 2012
Wedding ceremonies on Hawai'ian beaches may be the stuff of some fantasies, but they may also require permits from the state as any other commercial activity on state land would. In its opinion in Kaahumanu v. Hawai'i Department of Land and Natural Resources, the Ninth Circuit upheld Hawai'i's permitting scheme, except to the extent it allowed the state to alter the permits once issued.
The permitting scheme applies to ceremonies all state-owned beaches, even if there are three people at the wedding, if the officiant is receiving compensation. It prohibits tables, chairs, tents, and strictures demarcating the area, while allowing flowers, leis, chairs for the elderly/infirm, and "unamplified musical instruments including a conch shell."
The Ninth Circuit's unanimous panel opinion easily found that one of the plaintiffs, a wedding and events professional association, had standing, and quickly proceeded to the gravamen of the constitutional claim.
As the court expressed it, the First Amendment challenge posed three questions:
- First, do wedding ceremonies constitute “speech” protected by the First Amendment?
Second, what is the nature of the forum?
Third, are the challenged restrictions on commercial weddings permissible in the forum?
The Hawai'i Department of Land and Natural Resources (DLNR) contended that weddings were not speech at all and thus excluded from First Amendment protection. Applying the "particularized message" expressive conduct test from Spence v. Washington, 418 U.S. 405 (1974), the court had "no difficulty" concluding that wedding ceremonies were protected expression: "The core of a wedding ceremony’s “particularized message” is easy to discern, even if the message varies from one wedding to another."
The forum issue was not so easily resolved - - - and indeed, remained unresolved. The panel seemed hesitant to render an opinion that might be used in other contexts. Moreover, while the DLNR contended that "all unencumbered state beaches are nonpublic forums" and the plaintiffs contended that "they are all traditional public forums," the court ruled that Hawai’i’s unencumbered state beaches were not so easily categorized. Instead, the beaches "vary from heavily trafficked beaches to isolated beaches accessible only by foot or watercraft," and on the present record, it was "difficult to put all of Hawai’i’s unencumbered state beaches into a single forum category." Thus, the court assumed - - - without deciding - - - that "unencumbered state beaches in Hawai’i are, as Plaintiffs contend, a traditional public forum." Thus, the panel stated it would assess the validity of all regulations "that we uphold under the most exacting test for restrictions on forum access." On the contrary, the panel assessed the particular provisions of the regulation that it did not uphold under the most lenient standard. The panel summarized its First Amendment holding thusly:
In sum, we hold that DLNR’s regulation requiring a person to obtain a permit for commercial weddings on unencumbered state beaches is narrowly tailored to a significant governmental interest, is content-neutral, leaves ample alternative spaces for hosting a wedding, and does not vest too much discretion in the government official when issuing the permits. We hold that the limitation on accessories, insurance requirement, and the indemnification/hold-harmless clause also satisfy the tra- ditional public forum standard. However, we hold invalid the grant of discretion to DLNR to revoke, or add terms to, a per- mit under the least exacting standard of review for a nonpublic forum.
The panel opinion also briefly referred to the plaintiffs' freedom of religion arguments, rejecting them because that while the regulation may have an incidental effect on specific religious "implements or physical symbols," this does not "render it impermissible." Seemingly, a more specific as-applied challenge, perhaps also stating a RLUIPA claim, might be taken more seriously.
Additionally, the court rejected the Equal Protection and Due Process claims: while recognizing that the "right to marry" is a fundamental right, the DLNR’s "regulation of commercial weddings on unencum- bered state beaches does not impinge on the right to marry."