Constitutional Law Prof Blog

PRENDA - The Sex Selection Anti-Abortion Bill Fails to Pass House of Representatives, But . . . .

As the Washington Post reports, members of the House of Representatives "voted 246 to 168"  on PRENDA, HR 3541, the Prenatal Non-Discrimination Act, that bans sex-selective and race-selective abortions.  While the 246 majority voted for PRENDA, it "failed to pass as House Republicans brought it up under a suspension of normal rules that required it to earn a two-thirds majority vote."

PRENDA defines "‘‘sex-selection abortion’’ as an "abortion undertaken for purposes of eliminating an unborn child of an undesired sex," and ‘‘race-selection abortion’’ is "an abortion performed for purposes of eliminating an unborn child because the child or a parent of the child is of an undesired race."  The bill is similar to one in Arizona that did become law; the few other states that do have statutes focus on sex-selection.

As I've written elsewhere:

The specter of sex-­selection prohibitions in abortion statutes is said to pose a political dilemma for feminists,who can be “torn” between “support for reproductive autonomy” and “distaste for sex-­‐selection practices driven by a gendered and patriarchal society.” It also provokes opposing logical constructions. On one account, if there is right to an abortion for any or no reason, this includes a right to an abortion even for a problematical reason.165 On an opposing account, “[t]he right to not have a child for any reason does not logically encompass the right not to have a child for any specific reason.”  Whatever the logic, however, an interrogation of a woman’s “reason” for having an abortion demonstrates a distrust of women similar to the distrust apparent in other abortion restrictions that treat women have abortions quite differently than ungendered patients providing informed consent for other medical procedures. However, unlike other abortion restrictions such as mandatory ultrasounds or waiting periods, sex-­‐selective prohibitions are not cast as being beneficial to women or assisting decision-­‐ making; rather, they clearly seek to remove the power of a woman’s choice to terminate a pregnancy in service to a larger societal and state interest.

Indeed, PRENDA's findings on sex include:

(subsection L) Sex-selection abortion results in an unnatural sex-ratio imbalance. An unnatural sex- ratio imbalance is undesirable, due to the inability of the numerically predominant sex to find mates. Experts worldwide document that a significant sex-ratio imbalance in which males numerically predominate can be a cause of increased violence and militancy within a society. Likewise, an unnatural sex-ratio imbalance gives rise to the commoditization of humans in the form of human trafficking, and a consequent increase in kidnapping and other violent crime.

PRENDA bases this finding on the experience of nations such as China, mentioning "son preference" but not China's accompanying one-child policy.  For some, the interest in prohibiting sex-selective abortion is a "manufactured controversy."  For others, PRENDA may be part of an election year strategy.

For those teaching a summer course in ConLaw, this could be the basis of an excellent problem.  ConLawProfs might want to also consider the constitutional provisions on which Congress grounds its power, including the Thirteenth Amendment.

RR

First Circuit: DOMA Section 3 Unconstitutional

In today's unanimous panel opinion in Massachusetts v. HHS, consolidated with Gill v. Office of Personnel Management, the First Circuit upheld federal District Judge Tauro's companion opinions that section 3 of DOMA is unconstitutional. (April's oral argument can be heard here).

The First Circuit opined that the issue is difficult not only because of what it called the Justice Department's "about face" but because it

couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings. In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation. We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.

The panel relied upon Moreno, Cleburne, and Romer v. Evans, each of which "rested on the case-specific nature of the discrepant treatment, the burden imposed, and the infirmities of the justifications offered," to ultimately employ a heightened rational basis of equal protection review. 

As to federalism, the panel noted that "DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation--domestic relations and the definition and incidents of lawful marriage--which is a leading instance of the states' exercise of their broad police-power authority over morality and culture."  Although certainly the federal government does have an interest in marriage (given how many federal laws rely on the definition), nevertheless "Congress' effort to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws does bear on how the justifications are assessed."  

The First Circuit thus stops short of finding that DOMA is inconsistent with the Tenth Amendment, but deploys federalism to evaluate the government interests under equal protection.

The four interests expressed in the House Committee Report were

• (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 government resources.

The First Circuit rejected all these interests as inadequate, including the preservation of government resources that it found to be factually dubious, and also rejected the "child rearing" and "temporary measure" rationales advanced in litigation, as not supported by the legislation. 

Thus, the panel concluded:

the rationales offered do not provide adequate support for section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test.

Surely BLAG - - - the Bipartisan Legal Advisory Group of the United States House of Representatives, an organization defending DOMA funded by taxpayers - - - will petition for certiorari to the United States Supreme Court, although perhaps first for en banc review.

RR

Eleventh Circuit: Pregnancy Discrimination Suit Against Religious School To Proceed

In a relatively brief and unanimous opinion in Hamilton v. Southland Christian School, the Eleventh Circuit reversed the district court's grant of a summary judgment in favor of the school. 

As Judge Carnes describes the facts in the first paragraph of his opinion:

"A woman of childbearing age was hired as a teacher at a small Christian school. Then she got pregnant, married, and fired. In that order. Then she filed a lawsuit. She lost on summary judgment. This is her appeal." 

The next paragraphs, one would assume, would be devoted to discussing the ministerial exception.  And they are.  Except the discussion is devoted to the procedural status of the ministerial exception in this litigation.  While the school did raise it as an affirmative defense, the district judge rejected it, but granted summary judgment on the ground that the teacher had not established a prima facie case that her pregnancy was the reason the school terminated her.  On appeal, the school did not raise the ministerial exception defense as an alternativeground for affirmance; its "brief mentions the ministerial exception only once, and that is when describing the district court’s rulings: 'The Court determined that the ministerial exception did not apply in this case.' ”  The school's attorneys did file a notice of Supplemental Authority several months later, citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp’t Opportunity Comm’n.  But that, the Eleventh Circuit held, was not sufficient. 

The court then found there remained material issues of disputed fact as to the reason the teacher was fired.  The remand, for proceedings consistent with the opinion, presuambly leaves the "ministerial exception" door open for the district court.

RR
[image: Woodcut from The Scarlet Letter, 1878, via]

 

Saturday Evening Review: Julie Nice on the "Responsible Procreation" Argument in Same-Sex Marriage Constitutional Litigation

With President Obama making news this week proclaiming his personal support for same-sex marriage, after an extensive "evolution," it's a good time to take a look at scholarship on the constitutional arguments. 

Obama specifically mentioned same-sex couples "raising kids together."  But one of the more odd - - - at least on first review - - - arguments in support of state marriage being limited to opposite sex couples is that this is acceptable, but that opposite sex couples need more "encouragement" to marry.  This is the so-called "responsible procreation" state interest.  Perhaps it reached its most interesting articulation in the pronouncement of New York's highest court, an opinion subject to a skewering analysis - - - and fun read - - - in John Mitchell's  Chatting with the Lady in the Grocery Store about Hernandez V. Robles, the New York Same-Sex Marriage Case, available on ssrn.

ConLawProf Julie Nice (pictured below) has now elaborated this odd notion in The Descent of Responsible Procreation: A Genealogy of an Ideology, forthcoming in Loyola Los Angeles Law Review, draft available on ssrn.  With her usual scholarly integrity matched by innovative analysis, Nice "traces the genealogy of responsible procreation."

She notes that same sex constitutional litigation has changed remarkably during the past several decades, with the amount of such litigation increasing substantially.  With state justifications eroding, especially since blatant discrimination has become more disfavored, defenders of state bans on same-sex marriage have primarily leaned on the responsible-procreation defense, which surmises that same-sex couples already procreate responsibly and that the rights and responsibilities of marriage should be limited to furthering the goal of encouraging more responsible procreation by heterosexuals.

Nice explains that the justification is rooted in religion.  It appeared as a justification of the federal Defense of Marriage Act.  State courts split on its constitutionality: the high court of Massachusetts found it to be “unpersuasive” while the New York court used it as a justification for a rejection of constitutional challenge to same-sex-marriage bans. 

And in Perry v. Brown, the district judge and the Ninth Circuit panel ruling on the constitutionality of California’s Proposition 8, rejected the responsible-procreation state interest. 

While the saga of Perry v. Brown is far from over, Nice predicts that the "responsible procreation" state interest is "on the wane."   She ultimately argues the emerging trend is that both executive officials and courts are rejecting the "responsible procreation" rationale and concluding that the same-sex-marriage ban is drawn, not to further a proper legislative end but to make same-sex couples and their children unequal to everyone else.  She contents that even conservative commentators defending the same-sex-marriage ban openly concede that it is drawn to disadvantage same-sex couples and to favor opposite-sex couples.

Thus, she concludes regardless of which level of scrutiny is applied, contemporary constitutional jurisprudence is quite clear that such an invidious ideology is not a legitimate basis for law.

An article worth reading that not only puts the same-sex marriage constitutional issues into perspective but also provides an excellent primer on equal protection and constitutional litigation.

RR

Establishment Clause Challenge to Solemnization of Marriage Law in Indiana

Indiana, like most states, allows state officials, judges, and certain religious officials to "officiate" at marriage ceremonies, performing the legal requirement often called solemnization.  In popular understandings, this is the person who asks the question of the persons to be married which they must each answer something akin to "I do." 

But who gets to officiate?  Generally, the persons are listed by statute.  Indiana Code 31-11-6 lists the persons authorized to solemnize marriages, as:
    
        (1) A member of the clergy of a religious organization (even if the cleric does not perform religious functions for an individual congregation), such as a minister of the gospel, a priest, a bishop, an archbishop, or a rabbi.
        (2) A judge.
        (3) A mayor, within the mayor's county.
        (4) A clerk or a clerk-treasurer of a city or town, within a county in which the city or town is located.
        (5) A clerk of the circuit court.
        (6) The Friends Church, in accordance with the rules of the Friends Church.
        (7) The German Baptists, in accordance with the rules of their society.
        (8) The Bahai faith, in accordance with the rules of the Bahai faith.
        (9) The Church of Jesus Christ of Latter Day Saints, in accordance with the rules of the Church of Jesus Christ of Latter Day Saints.
        (10) An imam of a masjid (mosque), in accordance with the rules of the religion of Islam.

The Center for Inquiry, a secular humanist group, has filed a complaint challenging the constitutionality of the section, based on its argument that it would like to perform secular weddings.  The complaint avers that secular ceremonies by state officials may not be desirable for some secular humanists: it would have "political overtones" and the official may not know the couple personally or share their values.  Such is alleged to be the case with the individual plaintiffs who have joined the Center for Inquiry.

The gravamen of the argument is that the Indiana statute embodies a preference for religion over irreligion and therefore violates the Establishment Clause. The ACLU is representing the plaintiffs in Center for Inquiry v. Clerk, Marion County, and its press release is here.

RR
[image: 14th C wedding via]

South Africa Constitution's Sexual Orientation Equality Provision at Risk?

South Africa's Bill of Rights, Section 9, subsection 3 provides:

The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

This Constitution, effective in 1997, is the post-Apartheid Constitution.  As the government itself boasts, "South Africa’s Constitution is one of the most progressive in the world and enjoys high acclaim internationally."  The progressive reputation of the South Africa Constitution is well-deserved, and it is based in part as being the first Constitution to explicitly recognize equality on the basis of sexual orientation.

Interpreting this provision, the highly respected South Africa Constitutional Court has declared sodomy laws unconstitutional, has declared the limitation of marriage to opposite-sex couples as unconstitutional, and recognized family rights for same-sex couple parents. 

But the inclusion of sexual orientation has re-emerged as a controversial issue.  As ConLawProf Pierre deVos at the University of Cape Town reports on Constitutionally Speaking, the House of Traditional Leaders submitted a proposal to the Constitutional Review Committee of the National Assembly to amend section 9 of the Constitution to remove sexual orientation provisions and the Review Committee has referred the matter to the political parties.  As deVos explains it:

This means that the various Parliamentary caucuses of political parties represented in Parliament will soon have to decide whether they support unfair discrimination against people they might believe are not like them, or whether they will affirm their commitment to non-discrimination and the respect for the human dignity of all South Africans, the very bedrock on which the Bill of Rights in the South African Constitution is founded. . . .

DeVos' analysis is worth reading in full. 

Coupled with recent controversies surrounding the composition of the South Africa Constitutional Court, this is alarming news indeed, and threatens South Africa's status as a constitutional democracy that is "one of the most progressive in the world."

RR
[image: Rainbow Map South Africa via]

Greenhouse on Ginsburg on Gender on Coleman v. Maryland: Worth Reading

The inimitable Linda Greenhouse has a provocative column entitled "Women's Work" which takes up the continuing relevance of gender politics - - - and a gender divide - - - on the Supreme Court.  Her subject is the Court's 5-4 opinion last month in Coleman v. Court of Appeals of Maryland.

Coleman's consitutional issue involved the Eleventh Amendment, which may at first blush seem an odd grounding for gender equality, until one recalls cases such as Nevada Department of Human Resources v. Hibbs (2003).  As Greenhouse reminds us, Rehnquist's opinion for the majority in Hibbs was rather suprising.  Not only did it reverse the Court's trend to "diss Congress" (as Ruth Colker and  James Brudney so evocatively phrased it in their terrific 2001 article), but also construed Congressional intent in the Family Medical Leave Act (FMLA) as addressing  “the pervasive sex-role stereotype that caring for family members is women’s work.” 

Greenhouse states she'd "love to know" how Rehnquist would have decided Coleman, involving the self-care provision of FMLA.  She criticizes Kennedy's opinion for the Court as ignoring the legislative history that Ginsburg so meticulously discussed in the dissent and that was central to Hibbs. (Of course, one might also recall that Kennedy also dissented in Hibbs).

And, while we are used to thinking about a "liberal" v. "conservative" split on the Court, Greenhouse highlights another split: "the three women, along with the highly evolved Justice Stephen G. Breyer, were on one side – the losing side – while the remaining five men were in the majority."  

One of those five men in the majority is Alito, who one might recall, replaced Justice O'Connor.  O'Connor joined the majority in Hibbs, so perhaps it is reasonable to believe that she would have joined Ginsburg's view regarding the importance of sex-role stereotyping in the FMLA, extended to the self-care provision.

But one might also recall that before Justice Alito, there was nominee Harriet Miers.  One wonders how she might have voted.

RR
[image: WWII government poster via]

Saturday Evening Review: What Would Elizabeth Cady Stanton Say?

Feminist icon Elizabeth Cady Stanton (pictured right) is frequently portrayed as an anti-abortion.  For example, bills such as The Susan B. Anthony and Frederick Douglass Act of 2011, H.R. 3541, and The Elizabeth Cady Stanton Pregnant and Parenting Students Services Act of 2005, S.1966, H.R. 4265, co-sponsored by 2012 Republican Presidential candidate Rick Santorum, sought to limit abortion and other reproductive rights in the name of Stanton (as well as anti-slavery hero Frederick Douglas).   Stanton's supposed anti-abortion views are also frequently cited in Supreme Court briefs to defeat an argument that abortion is central to women's rights by noting that early feminists were against the practice.

But was Stanton actually anti-abortion?

Professor Tracy Thomas argues that Stanton is an unlikely - - - and inappropriate - - - poster woman for the contemporary anti-abortion movement in a new paper entitled Misappropriating Women’s History in the Law and Politics of Abortion.   According to Professor Thomas, Stanton "did not talk about abortion per se" and "did not respond to the public campaign for the criminalization of abortion led by the medical profession with attacks on the growing autonomy of women."   Instead,

Stanton turned this debate to her priority of women’s rights, framing the question as one of the “elevation of woman” through equal legal and social rights. Stanton’s theory of “enlightened motherhood” placed women as the “sovereign of her own person” with sole responsibility for deciding when and under what circumstances to bear children. She defended women accused of infanticide, exposing the gendered legal system of all-male juries, legislatures, and judges that condemned them. Stanton’s life work labored for radical change to the patriarchy of society seeking liberal legal reforms of equal rights for women. Her ideology was about the “self-sovereignty” of women and against the regulation of women by men or the law.

Of course, Stanton was not one of the framers of the Fourteenth Amendment and indeed, she refused to support the Amendment given its exclusion of women.  Nevertheless, Stanton's "originalist" views on the rights of women are often invoked and Tracy Thomas has provided vital historical sources, analysis, and arguments regarding Stanton's position. 

Thomas' article is sure to provoke its own analysis and arguments, and equally sure to be an important contribution in contemporary debates regarding the legal regulation of abortion.  It's a must-read for any scholar working on this controversial constitutional area.

RR
[image of Elizabeth Cady Stanton circa 1880 via]

DOMA Held Unconstitutional - - - Yet Again

This time, the opinion comes from federal District Judge Jeffrey White in Golinski v. United States Office of Personnel Management.   Golinski is a staff attorney with the Ninth Circuit and in 2009 Chief Judge Kozinski ordered that Golinski's health benefits form listing her same-sex partner as wife be submitted by federal personnel authorities.  The DOJ since decided not to defend the constitutionality of DOMA and such actions are being defended by BLAG - - - the Bipartisan Legal Advisory Group of the United States House of
Representatives.

Golinski, a federal employee and described by the court as "a lesbian woman married under California law, who is unable to secure federal health benefits for her same-sex spouse," challenged Section 3 of DOMA as a violation of equal protection and due process under the Due Process Clause of the Fifth Amendment.  Under equal protection doctrine, the court looked at the "various factors" to determine the level of scrutiny the sexual orientation classification merited:

• the history of invidious discrimination against the class burdened by the legislation;
• whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society;
• whether the distinguishing characteristics are “immutable” or beyond the class members’ control;
• the political power of the subject class

After finding that there was no definitive precedent regarding the level of scrutiny that should apply, and applying the factors, the judge specifically held "that gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority." 

In applying the heightened scrutiny standard, the judge considered the animus expressed by certain members of Congress in DOMA's legislative history, the judge then analyzed the government's stated interests: responsible procreation and child-rearing; nurturing the institution of traditional, opposite-sex marriage; defending traditional notions of morality; and preserving scarce government resources.  For each interest, the judge concluded that that it did not "provide a justification that is substantially related to an important governmental objective."

The opinion then engaged in an "alternative analysis" under rational basis review - - - and also applied this to the BLAG's proffered additional hypothetical rational bases for passing DOMA:

• Congressional caution in defining a legislative term and maintaining the status quo
• Congressional caution in area of social divisiveness
• Consistency
• Any other possible basis

With many references to Judge Tauro's 2010 opinions holding DOMA unconstitutional, Judge White similarly decided that these post-DOMA rationales do not satisfy rational basis.

Judge White's conclusion considers the broader issues, including separation of powers and judicial review, in context:

    The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

Prejudice, we are beginning to understand, rises not from malice or hostile
animus alone. It may result as well from insensitivity caused by simple want of
careful, rational reflection or from some instinctive mechanism to guard against
people who appear to be different in some respects from ourselves.

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy,
J., concurring).
    This case was presented by an employee of the judicial branch against the executive
branch, which ultimately determined it could not legitimately support the law. The law was
then defended by the legislative branch. The judicial branch is tasked with determining whether this federal law is unconstitutional. That is the courts’ authority and responsibility. “It is emphatically the province and duty of the judicial department to say what the law is” and,where it is so, to declare legislation unconstitutional. See Marbury v. Madison, 1 Cranch 137, 177 (1803). As Supreme Court Chief Justice John G. Roberts said during his confirmation hearings: “Judges are like umpires. Umpires don’t make the rules, they apply them. ... it’s [the judge’s] job to call balls and strikes, and not to pitch or bat.” Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr.,
Nominee).
    In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right
to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.

Apart from the substance, Judge White's opinion is a model of organizational clarity.  For ConLawProfs looking for excellent opinions that demonstrate the organizational structure of equal protection doctrine, including alternative arguments, this is an opinion worth considering.

RR

Prop 8 Proponents Petition for Rehearing En Banc in Ninth Circuit

The Proposition 8 proponents filed their petition for en banc review of the panel decision isssued earlier this month declaring Proposition 8 unconstitutional, affirming the district judge's order.

This ends speculation that the proponents would bypass the Ninth Circuit and petition for a writ of certiorari as soon as possible.

The proponents contend that the panel opinion conflicts with Supreme Court precedent (Baker v. Nelson, 409 U.S. 810 (1972);Crawford v. Board of Education, 458 U.S. 527 (1982); Johnson v. Robison, 415 U.S. 361 (1974)) and "involves a question of exceptional importance." 

Not surprisingly, the proponents contend that the panel "misapplied" Romer v. Evans.  While Romer was a centerpiece of the panel's opinion regarding "animus," the proponents argue that the panel construed Romer as a question of "timing" rather than "substance."  With the animus issue thus defused, the proponents then argue that the panel's holding that "Proposition 8 does not bear even a rational relationship with the State’s indisputable interest in responsible procreation and childrearing conflicts directly with a decision of the Eighth Circuit and a host of other decisions."

More surprisingly, the proponents restate their argument regarding judicial disqualification:

Unbeknownst to the parties, at all times while presiding over and entering judgment in this case, former Judge Walker, like Plaintiffs, was a “resident[] of California … involved in [a] long-term … relationship with [an] individual[] of the same sex.”

(ellipses in original).  The panel was unanimous on this point, as was the district judge, and the refusal to abandon the disqualification-because-of-sexual-orientation argument makes the proponents seem biased rather than the judge.  Part of their argument seems to flow from their own assumption that judges are heterosexual: The proponents argue that judge's "refusal to disclose his long-term same-sex relationship was contrary to fundamental maxims of judicial propriety."  Moreover, they argue that Judge Walker's same-sex relationship contravenes "the ancient principle that “[n]o man is allowed to be a judge in his own cause,”  citing THE FEDERALIST NO. 10, at 74 (Clinton Rossiter ed., 2003).  Yet as we've previously noted, given the proponents own arguments about the importance of heterosexual marriage, it is difficult to see how a heterosexual judge - - - or a married judge - - - would be any less "a judge in his own cause." 

RR
[image: Anders Zorn, The Bride, via]

Opinion Analysis: Ninth Circuit in Perry v. Brown, the Prop 8 case

As we noted earlier today, the Ninth Circuit panel has affirmed the district judge that Proposition 8 is unconstitutional, in a 2-1 decision.

The panel was unanimous on two points:

First, the proponents had standing.  The standing issue is convoluted in this case, for it is the standing of Hollingsworth and ProtectMarriage.com to appeal as proponents of Proposition 8, given that the state (in the person of defendant Governor Brown, formerly Schwarzenegger) refused to defend the constitutionality of Prop 8.  The panel distinguished Arizonans for Official English v. Arizona, 520 U.S. 43, (1997), stating that unlike that case,

we do know that California law confers on “initiative sponsors” the authority “to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” The California Supreme Court has told us, in a published opinion containing an exhaustive review of the California Constitution and statutes, that it does.

While a state (or other party) cannot confer Article III standing on a federal court, a state, as an "independent sovereign" possesses the prerogative to "decide for themselves who may assert their interests and under what circumstances."  Thus, the California Supreme Court's decision is outcome determinative.

Second, Walker's sexuality was not a reason to vacate his opinion.  More precisely, applying the abuse of discretion standard, District Judge Ware, who replaced Judge Walker Vaughn, was affirmed regarding the denial of a motion to vacate Walker's judgment based on Walker's sexuality. 

The panel divided on the central issue: the constitutionality of Prop 8 itself.  The majority opinion, authored by Reinhardt concluded that Proposition 8 was unconstitutional.  Reinhardt begins the panel majority opinion with an important framing of the issue:

Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.

Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right—the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less.

Thus, Judge Reinhardt's opinion continued, Prop 8 "therefore could not have been enacted to advance California's interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples."  Additionally it did not "have any effect on religious freedom or on parents' rights to control their children's education; it could not have been enacted to safeguard these liberties."  Instead, all that Prop 8 "accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships."  Later in the opinion, the panel majority provides examples of the cultural significance of "marriage" as a term:

Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, “Will you marry me?”, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see “Will you enter into a registered domestic partnership with me?”. Groucho Marx's one-liner, “Marriage is a wonderful institution ... but who wants to live in an institution?” would lack its punch if the word ‘marriage’ were replaced with the alternative phrase. So too with Shakespeare's “A young man married is a man that's marr'd,” Lincoln's “Marriage is neither heaven nor hell, it is simply purgatory,” and Sinatra's “A man doesn't know what happiness is until he's married. By then it's too late.” We see tropes like “marrying for love” versus “marrying for money” played out again and again in our films and literature because of the recognized importance and permanence of the marriage relationship. Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for samesex couples is no different. The name ‘marriage’ signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships. . . . .

Thus, for the panel majority, Prop 8 "serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."  The panel majority stated that the "Constitution simply does not allow for 'laws of this sort,' " quoting and citing  Romer v. Evans, 517 U.S. 620, 633 (1996).

Indeed, Romer v. Evans - - - in which the Supreme Court invalidated Colorado's Amendment Two that had prohibited any policies, ordinances, or laws that allowed claims of discrimination on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships" - - - is a lynchpin of the panel majority's analysis.   Like Amendment 2, Prop 8 eliminated a pre-existing right:  "as the voters were told," Prop 8 would “eliminate the right of same-sex couples to marry in California.” :

Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.

Applying Romer's heightened rational basis scrutiny with its emphasis on animus as not satisfying a legitimate state interest, the panel majority finds Prop 8 - - - as an initiative that changed the status quo - - - to be unconstitutional.

Judge Smith, dissented as to the constitutionality of Proposition 8, largely arguing that Romer v, Evans was distinguishable.

The majority panel's final footnote forestalls the effect of the decision: "The stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuance of the mandate."

The proponents now have to decide whether to seek a rehearing enbanc by the Ninth Circuit or to petition the United States Supreme Court for a writ of certiorari.  Doubtless, they will do one or the other.  And the complex Prop 8 saga will continue.

RR

 

Alabama's HB56: Immigrants' Rights to Housing and to Marry

Portions of the Beason-Hammon Alabama Taxpayer and Citizen Protection Act, Act 2011-535 - - - more popularly known as HB56 - - - have been enjoined by the district judge in two very lengthy separate opinions in the companion cases of United States v. Alabama and Hispanic Interest Coalition of Alabama v. Bentley, and additional sections enjoined by the Eleventh Circuit.   However, new litigation continues to challenge aspects of Alabama's immigration scheme.

In the Complaint in Central Alabama Fair Housing Center v. Magee, housing advocacy groups challenge section 30 of HB56 that makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.   This "business transaction" apparently includes complying with other Alabama statutes that require "submitting a payment for the annual manufactured home registration fee and obtaining a current identification decal," as well as a permit to move a manufactured or mobile home.  

Thus, as United States District Judge Myron Thompson observed in his opinion granting a TRO, the challenge is an "as-applied" one that "raises a host of issues not considered" by the previous courts.  Judge Thompson focused on the preemption claim, finding a likelihood of prevailing on its merits.  He found that "the evidence reflects that the Alabama Revenue Department and the Elmore County Probate Office initially proposed to use their own, state-created alternative for determining whether, under § 30, an individual has adequately demonstrated his or her lawful citizenship status, but are now in the process of developing a new system that will comply with HB 56."   The process is thus very different from those in which employers utilize E-verify.  As the Judge stated,

What is clear is, first, that the defendants do not now have in place a definite process that will be in sync with federal immigration law and, second, that they will not have a process in place any time soon. The conclusion that the defendants’ current process (or, perhaps to be more accurate, lack of a definite process) conflicts with federal law is inescapable.

The TRO expires December 7, 2011.  A NYT editorial yesterday argued that HB56 is causing Alabama economic damage.

While the definition of "business transaction" in §30 of HB56 is broad, subsection(a) specifically exempts marriage licenses: "Business transaction" "does not include applying for a marriage license."  Yet another complaint filed in federal court, Loder v. McKinney, contends that probate offices charged with issuing such licenses are requiring proof of immigration status, despite previous opinions by the Alabama Attorney General.  As the complaint alleges, the probate court of Montgomery county lists the requirement of proof of "legal presence" on its website:

Requirements For Persons 18 years or older

Non-citizens of the United States must provide proof of legal presence in the United States in the form of valid immigration documents or passport.

Each applicant must provide one of the following:

                1. An official Picture ID (passport, military ID, State issued ID, Driver's License).
                2. An original certified copy of the state issued birth certificate (hospital copy not acceptable) and original social security card.
                3. U. S. Government issued Immigration Services Picture ID Card (green card, visa, alien resident card, etc.).

The complaint alleges a fundamental right to marry and a violation of the Fourteenth Amendment's due process and equal protection clauses.  More about the litigation is available on the Southern POverty Law Center's website here.

RR
[image via]

Proposition 8 and the Question of Constitutional Standing: In the California Supreme Court

The question - - - certified by the Ninth Circuit to the California Supreme Court in September - - - was this:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure [PROPOSITION 8] possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

The short answer from the California Supreme Court today is "Yes."  Or, as the conclusion to the court's opinion in Perry v. Brown states:

when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

It takes the court some 60 pages to reach this conclusion in an unanimous opinion written by the new Chief Justice Cantil-Sakauye, with an additional 7 page concurring opinion by Justice Kennard. Kennard wrote to "highlight the historical and legal events that have led to today‘s decision and to explain why I concur in that decision," and reiterated her position that is it is the judicial role to decide whether "excluding individuals from marriage because of sexual orientation can be reconciled with our state Constitution‘s equal protection guarantee."   On the contrary, the main opinion de-emphasized Proposition 8: "the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8. Instead, the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter."

The California Supreme Court states that "past official proponents of initiative measures in California have uniformly been permitted to participate as parties — either as interveners or as real parties in interest — in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored," and without any specific showings.  The opinion, it seems, could have ended there but the California Supreme Court stated it felt it was "useful and appropriate briefly to set forth, at the outset, our understanding of the federal decisions that discuss the role that state law plays in determining whether, under federal law, an individual or entity possesses standing to participate as a party in a federal proceeding."  Although the opinion emphasized that its "discussion of federal decisions is not intended to, and does not purport to, decide any issue of federal law, and we fully recognize that the effect that this opinion‘s clarification of the authority official proponents possess under California law may have on the question of standing under federal law is a matter that ultimately will be decided by the federal courts," certainly its analysis will be carefully considered by the Ninth Circuit.

The court's major analytic attention, however, was devoted to matters of state constitutional law focused on the initiative process.  In these cases, non-state actors have had the ability to defend the initiative from challenges.  Additionally, the court noted that "even outside the initiative context it is neither unprecedented nor particularly unusual under California law for persons other than public officials to be permitted to participate as formal parties in a court action to assert the public‘s or the state's interest in upholding or enforcing a duly enacted law."

If the Ninth Circuit fully credits the California Supreme Court's opinion and finds it sufficient to confer Article III standing, the court will proceed to the merits and review Judge Walker's opinion in Perry v. Brown (f/k/a Perry Schwarzenegger) that Proposition 8 violates the Constitution.

RR
[image: Pro and anti-Proposition 8 protesters rally in front of the San Francisco City Hall via].

Servicemembers File Complaint Challenging Constitutionality of DOMA

DOMA - - -  the Defense of Marriage Act - - - already suffering from legislative efforts at repeal and seriously questionable constitutional status, including the Obama DOJ's decision not to defend its constitutionality, has been challenged again. 

In a Complaint filed today, the Servicemembers Legal Defense Network representing several plaintiffs, challenged the constitutionality of DOMA in conjunction with several other statutes that govern benefits for military servicemembers.  The Complaint was filed in the United States District Court for the District of Massachusetts, the same district in which Judge Tauro found DOMA unconstitutional in companion cases in July 2010.

Paragraph 67 of the Complaint distills the argument:

The current military family benefits regimes of Title 10, Title 32 and Title 38, particularly as modified by DOMA, fail to address the modern military. These laws were crafted at a time when gays and lesbians were precluded from openly serving in the military, and when same-sex marriages were not legal in the United States. While Congress may have assumed that Title 10, Title 32 and Title 38 effectively covered all military spouses in the past, that is not the current reality. The military is a reflection of our society as a whole. Now that same-sex marriages are legal, and gays and lesbians can serve openly in the military, service members -- such as the Plaintiffs -- with same-sex spouses do serve in the ranks. To maintain the uniformity of benefits that Congress believed it was creating in Title 10, Title 32 and Title 38, the definition of "spouse" must include these same-sex spouses as well.

The Constitutional grounds include Equal Protection, the Tenth Amendment, the fundamental constitutional right to marry (without a specific constitutional text), and Bill of Attainder. 

Most unique is the Bill of Attainder argument, based on Article I, Section 9 of the United States Constitution which states that "No Bill of Attainder or ex post facto Law shall be passed."  The Complaint alleges that the "Bill of Attainder clause prohibits as unconstitutional any law that legislative determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial."  The argument is that as a result of DOMA's application to federal military benefits,

the federal government imposes a disability upon a clearly identifiable class of persons involved in legally-recognized same-sex marriages, including Plaintiffs, for no purpose other than to punish them. Plaintiffs were denied federal military benefits that they would otherwise be entitled to if not for their membership in this clearly identifiable class. Thus, through DOMA, Plaintiffs have been subjected to an unconstitutional Bill of Attainder.

The defense of DOMA is expensive: the original contract awarded by House Speaker John Boehner to Bush-era Solicitor General Paul Clement and capped at $500,000 was reportedly raised to three times that amount - - -  $1.5 million dollars - - - earlier this month.  This newest lawsuit may occasion even higher costs. 

RR

Town Clerk Update: NY Same-Sex Marriage Law and Town Clerk Seeking Religious Exemption

As the NYT reported yesterday, the clash between the same-sex marriage law in NY, the Marriage Equality Act, and the objections, religiously based, of public employees including town clerks, if fomenting.

As we previously discussed, while the Marriage Equality Act has a religious exemption, this does not cover town clerks who issue marriage licenses.  And as we also previously discussed, the Alliance Defense Fund issued a memo to town clerks entitled  "Your Right to Request An Accommodation of Your Sincerely Held Religious Beliefs Concerning Issuance of Marriage Licenses to Same- Sex Couples."

The NYT quotes the clerk in the rural community, Rose Marie Belforti, as saying  "state law 'protects my right to hold both my job and my beliefs.' "  While the article doesn not mention the memo, the state law claim is indeed discussed in the memo, which does not argue the First Amendment. 

At issue may be the contours of "religious accommodation."  According to the NYT article, the clerk's office is open only a limited number of hours, but same-sex couples desiring a marriage license needed to telephone in advance for a special appointment so that a substitute clerk could handle the matter.  The Town Clerk is an elected position.

RR

Justiciability under the New York State Constitution: Motion to Dismiss Same-Sex Marriage Challenge

The state has filed a Motion to Dismiss in New Yorkers for Constitutional Freedoms v. New York State Senate, the challenge to New York's same-sex marriage statute.  The plaintiffs, "New Yorkers for Constitutional Freedoms" describes its mission on its website thusly: "As a Christian ministry, NYCF exists to influence legislation and legislators for the Lord Jesus Christ." (emphasis in original)).

The motion to dismiss has some discussion of the merits, which as we have previously noted are very weak, but devotes most of its argument to justiciability issues under the state constitution.  The State Attorney of New York argues that "to the extent plaintiffs complain about Senate procedures, this case is nonjusticiable."  Essentially, the Attorney General argues that the case presents a political question and the entry into the fray would violate separation of powers under the state constitution.  The Attorney General also argues that the plaintiffs lack standing under the state constitution.  The plaintiffs cannot allege a personally concrete injury or how it suffered any injury distinct from the public at large.

RR

Equal Protection Problem?: California's Prison Release Program

The CDCR - - - California Department of Corrections and Rehabilitation - - -has anounced its plan "aimed at reuniting low-level offenders with their families and providing inmates with rehabilitative services within the community."   

As the LA Times notes, the plan is not simply motivated by rehabilitative motives.  The United States Supreme Court last May in Brown v. Plata upheld the court-ordered release of prisoners to remedy unconstitutional conditions at California prisons. 

SB 1266, signed by then-Governor Schwarzenegger, as originally drafted was applicable only to female inmates.  However, as the LA Times noted, this "could not be done because of a constitutional ban against gender-based discrimination. So the phrase "primary caregiver" was added to the bill."  The law establishes:

a program under which female inmates, pregnant inmates, or inmates who, immediately prior to incarceration, were primary caregivers of dependent children, as defined, who are committed to state prison may be allowed to participate in a voluntary alternative custody program in lieu of confinement in state prison.

Yet the current policy of the CDCR, as announced, reinstates the gender classification:

"Initially, the program will be offered to qualifying female inmates.

Participation may be offered at a later date to male inmates,

at the discretion of the Secretary of CDCR."

Moreover, the "primary caregivers of dependent children" may render the law gender-neutral, but it may impact upon other equal protection concerns.  Preferring parents or primary caregivers over those who are not warrants rational basis scrutiny.  There may also be due process concerns.  Pregnancy, likewise, might raise constitutional concerns.

For ConLawProfs, this could be an excellent equal protection in-class problem, discussion, extra assignment, or even an examination.

For California, this could mean more litigation.

RR
[image: The Prisoner by Evelyn deMorgan via]

What's Rational About Rational Basis Review?: Same-Sex Marriage Litigation in Perspective

This is from SCOTUSblog's  same-sex marriage symposium featuring discussions about the Proposition 8 litigation and DOMA litigation, both of which may be heading for the United States Supreme Court.

My contribution focuses on the rational basis standard of review:

The federal Defense of Marriage Act (DOMA) and California’s Proposition 8 are both subject to judicial review under a standard at least as rigorous as rational basis.

There are serious and worthwhile arguments that courts should employ a more rigorous standard of review than rational basis in same-sex marriage litigation.  However, federal district judges in two important decisions that may be heading to the United States Supreme Court have concluded that DOMA and Proposition 8 cannot survive even the low standard of rational basis.  Considering DOMA Section 3, federal district judge Joseph Tauro in Gill v. Office of Personnel Management declined to decide whether the federal statute should be subject to strict scrutiny “because DOMA fails to pass constitutional muster even under the highly deferential rational basis test.”   Similarly, ruling on Proposition 8 in Perry v. Schwarzenegger, federal district judge Vaughn Walker held that although the “trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation,” the application of “strict scrutiny is unnecessary,” because “Proposition 8 fails to survive even rational basis review.”

Judge Tauro’s decision is on appeal to the First Circuit, while Judge Walker’s decision is awaiting resolution of the important issue of whether the proponent/intervenors have standing to appeal to the Ninth Circuit, with a certified question presently before the California Supreme Court.   Whether the rational basis standard of review should be used to evaluate DOMA is also before Judge Barbara Jones of the Southern District of New York in Windsor v. United States. The Department of Justice is not defending the constitutionality of DOMA in Windsor, having concluded that DOMA fails to meet the heightened level of scrutiny it has determined should be used for sexual orientation classifications.   The Bipartisan Legal Advisory Group of The United States House of Representatives (BLAG), defending DOMA in Windsor, filed its Memorandum on August 1, vigorously asserting that rational basis is the correct standard and that DOMA easily satisfies it.

 

It’s most likely that the Supreme Court will use rationality review, or some form of it, when reviewing the exclusion of same-sex couples from marriage.   The classic formulation of the rational basis test is an ends/means test requiring that the government interest must be “legitimate” and the means chosen to effectuate that interest must be “reasonably” related to that interest.  This is the formulation for review under the equal protection and due process challenges at issue in same-sex marriage cases.  Rational basis is also operative when courts review challenges to laws based upon the First Amendment and the Fifth Amendment’s Takings Clause. A rational basis test is also used when the Court reviews whether Congress has exceeded its enumerated powers under the Commerce Clause (United States v. Lopez),  the Necessary and Proper Clause (United States v. Comstock), or the Copyright Clause (Eldred v. Ashcroft).

Even when there is agreement on the articulation of the rational basis test, which is not as consistent as one might hope, its application might be characterized as irrational.   In Ysursa v. Pocatello Educ. Ass’n, the Court deemed legitimate a state interest in avoiding the appearance of state involvement in partisan politics, and found that this interest was reasonably related to a prohibition of payroll deductions for union dues by public  – and by private – employers.   In Railway Express Agency, Inc. v. New York, the Court deemed legitimate a government interest in traffic safety, but held the city could reasonably believe that drivers would be less distracted by owner-advertising on vehicles and more distracted by the same advertising if the vehicle was owned by someone else.   In the 1896 case of Plessy v. Ferguson the Court held that the Louisiana legislature’s mandate of separation of the races on railways was “reasonable”; the approved purpose was conforming to the “established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.”

In the context of laws that limit legally recognized marriages to opposite-sex couples, the proffered legitimate goal telescopes into an interest in maintaining heterosexual hegemony.   For example, in seeking to “defend” marriage against attack by non-heterosexuals, Congress specifically articulated its purposes of encouraging responsible [heterosexual] procreation and child-bearing; defending and nurturing the institution of traditional heterosexual marriage; defending traditional [heterosexual] notions of morality, and preserving scarce resources [for heterosexuals].

Yet whether or not one considers these interests “legitimate” is not an inquiry solved by logic.  Instead, it rests upon whether one believes that heterosexuality is the preferred form of human sexuality ­and whether one believes the government, federal or state, should act to guarantee heterosexuality.   Moreover, these interests raise the specter that they are not legitimate because they are based on animus or the desire to harm a politically unpopular group of gay men and lesbians.  In United States Department of Agriculture v Moreno, the Court found a congressional definition of “household” was not legitimate because the legislative history indicated the purpose of the definition was to exclude “hippies” from receiving food stamps.

This purpose prong of the rational basis test applied to DOMA and Proposition 8 also raises the problem of the governmental entity itself.   Congress explicitly stated its interests in DOMA, although in Gill v. Office of Personnel Management the Obama Administration, then defending DOMA, sought to update the congressional interests.  As Judge Tauro noted, the United States was arguing that “the Constitution permitted Congress to enact DOMA as a means to preserve the ‘status quo,’ pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage.”  Judge Tauro rejected such an interest as legitimate given the federal government’s exceedingly limited role in matters of marriage and family law, a subject within the province of the states under the Tenth Amendment.   Judge Tauro might also have analogized to the gender classification case of United States v. Virginia (VMI) in which the Court repudiated governmental justifications that were “invented post hoc in response to litigation,” albeit under a higher standard than rational basis review.

Because Proposition 8 was a state-wide voter referendum, the government interests are not articulated with specificity.  If discerning legislative intent is difficult, certainly discovering intent of voters is even more difficult.  Moreover, because the state of California refused to defend Proposition 8 in the federal challenge, it was left to the proponents in Perry v. Schwarzenegger to articulate the interests of the “government.”  According to pleadings and quoted by Judge Walker, these interests were reserving marriage as a union between a man and a woman and excluding any other relationship from marriage; proceeding with caution when implementing social changes; promoting opposite- sex parenting over same-sex parenting; protecting the freedom of those who oppose marriage for same-sex couples; treating same-sex couples differently from opposite-sex couples; and “any other conceivable interest.” Presenting only two witnesses, both experts, the proponents focused on the interest of heterosexual marriage as producing offspring who were biologically related to both partners in the marriage.

Assuming there is a legitimate interest, applications of the rational basis test proceed to determine whether the means chosen can be said to reasonably (or rationally) serve that interest. For example, if one accepts as a legitimate governmental goal the encouragement of heterosexual procreation and child-rearing, then the extension of marriage to opposite-sex couples who do not (or cannot) have children becomes subject to different notions of what is “reasonable.”  The denial of marriage to same-sex couples who do have children also becomes subject to different notions of reasonableness, especially as it connects to heterosexual procreation and marriage.  For Judge Walker in Perry v. Schwarzenegger, the logical link was non-existent: “Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.”  In other words, the denial of marriage to some people will not affect the actions of other people.

Yet another court found that that the inducement of marriage could rationally be reserved for opposite-sex couples because they needed it more.  In 2006, New York’s highest court in Hernandez v. Robles contended that because heterosexual relationships lead to children and that because “such relationships are all too often casual or temporary,” the legislature could “choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other.”  The court reasoned that this inducement rationale “does not apply with comparable force to same-sex couples” who can become “parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse.”  Thus, the New York Legislature “could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more.”  This past June, the New York Legislature apparently changed its sense of the inducement rationale and passed the Marriage Equality Act. The New York State Attorney General has filed an amicus brief in Windsor advocating the unconstitutionality of DOMA Section 3 because New York has “consistently expressed and implemented its commitment to equal treatment for same-sex couples.”  Interestingly, the brief does not mention Hernandez v. Robles.

The existence of a reasonable relationship (or any relationship at all) and the legitimacy of the purpose are not simple logical deductions accomplished at the level of proof theory mathematics.  The Proposition 8 proponents’ motion to vacate the judgment in Perry after Judge Walker revealed his sexual minority status expresses this reality.  In denying the motion, the new district judge assigned to the case now known as Perry v. Brown stated a judge could be impartial and was “capable of rising above any personal predisposition.”   However, there is also a larger problem.  If Judge Walker is disqualified for “bias,” then all judges must be.  While bias allegations are more likely to be leveled against minorities, including women, as the judge ruling upon the motion to vacate noted, no decision-maker is immune.  Indeed, the purposes and reasonable relationships argued by the proponents of Proposition 8 and the BLAG now defending DOMA implicate everyone.  If one is married or not married, if one is a parent or not, if one is a parent who is married or not, if one was a child of parents who were married to each other throughout one’s childhood or not, one has particular experiences and interpretations of those experiences that would influence one’s assessment of “rational basis.”

This does not mean that there is unbridled discretion and the absence of any standards.  However, it does mean that the interests one is willing to recognize as legitimate for governmental action and the inferences one is willing to make are not purely rational.  Marriage, family, and sexuality are not susceptible to scientific calculations.   Neither is law.

 

RR

The Limits of DeShaney: Fifth Circuit Finds Special Relationship

Over a vigorous dissent from Judge Carolyn Dineen King, the two other judges on the panel in Doe v. Covington County School District, found the special relationship test of DeShaney v. Winnebago County, 489 U.S. 189 (1989) was met.

In its opinion earlier this month, the Fifth Circuit recognized that DeShaney made clear that as a general matter, a State’s failure to protect an individual against private violence is not a violation of the Fourteenth Amendment's Due Process Clause, with the only exception being when the State has a "special relationship” with the person.  In DeShaney, the Court found that no such "special relationship existed even when state social workers investigated a case of child abuse, repeatedly, but returned the child to the father's custody and the father beat the child into a comatose state.

As the Fifth Circuit majority phrased the issue in Doe, it was considering whether there are "circumstances under which a compulsory-attendance, elementary public school has a “special relationship” with its nine year-old students such that it has a constitutional “duty to protect” their personal security."

The Fifth Circuit found that such circumstances do exist in the allegations of Doe's complaint, which the trial court had dismissed under DeShaney.   The fact that she was nine years old was indeed important to the court, for it "made Jane wholly dependent on the School for her safety," and the school, according to the court, "thus assumed the duty to protect her."

However, the other circumstances, as alleged in the complaint, also contributed to the court's finding of special circumstances.  The school allowed a man to "check out" Jane Doe from school and return her later in the day on six separate occassions, simply signing her out as her father, and once as her mother.  The man was not on the "permission list," was not related to Jane Doe, and the school employees did not ask for any idenitification or check the "permission list."  The man took Jane from school, sexually molested her, and then returned her to school.

On the majority's view, the school was not passive, but "affirmatively forced" Jane Doe into the sole custody of a man from whom she could not protect herself.  Thus, it distinguished Jane Doe's situation from the passivity of the caseworkers in DeShaney.

Judge King's dissent argues that Jane Doe's age is irrelevant and disputes the majority's characterization of Jane Doe being "forced" to leave with a "stranger."  While there may have been negilgence, Judge King notes, this does not rise to the level of a constitutional matter.

The "special relationship" requirement to escape DeShaney's harsh rule has generally only been extended to persons who are imprisoned or in foster care, based on the state's complete control over the person.  A majority of the Fifth Circuit has found that during the school day, under laws requiring complusory education, a school also has complete control - - - or sufficient control to not allow unauthorized persons to remove children from school during the school day.

RR
[image: "Schoolboy" by Albert Anker - Schulknabe, 1881, via]

Planned Parenthood of Kansas v. Brownback: Federal Judge Issues Preliminary Injunction

 In a Memorandum and Order today, Judge J. Thomas Marten of the United States District of Kansas, enjoined the enforcement of the Kansas defunding of Planned Parenthood statute, Section 107(l) of H.B. 2014, 84th Leg. (Kan. 2011).  The judge enjoined the Kansas state defendants from any further enforcement or reliance on  athe state statute and directed them to allocate all Title X funding for State Fiscal Year 2012 without reference to Section 107(l), and to provide continuation grant funding to the Planned Parenthood.

The Kansas statute, Section 107(l) of H.B. 2014, which took effect on July 1, 2011, defunds Planned Parenthood by providing that Kansas subgrants of Title X funds are "exclusively prioritized" to public entities, or secondly, to hospitals or federally-qualified health centers (FQHCs). As Planned Parenthood is a private entity which is neither a hospital nor a FQHC, it cannot successfully apply to Kansas to receive Title X funds.

Planned Parenthood argued that the statute violated the Supremacy Clause, in that in conflicted with federal law under Title X, and that the statute violated its First Amendment rights.  The judge found there was a substantial likelihood of success on both of these claims.

First, however, the judge considered the state's argument that any relief was barred by the Eleventh Amendment.  The state defendants argued that the requested relief therefore must include an order for the State to sign a contract with and pay money to Planned Parenthood, thereby violating the State’s sovereign immunity.  Rejecting this argument, the court stated that it found "the injunctive relief sought by Planned Parenthood will not violate the Eleventh Amendment, as it seeks an order which would simply preclude the defendants from any decision allocating Title X funding on the basis of the allegedly unconstitutional Section 107(l).”

As to Planned Parenthood's pre-emption claim, the judge noted that there were several cases holding that a state's imposition of additional eligibility requirements under Title X are invalid as creating an unconstitutional conflict.  The state statute did not simply render uncertain whether or not Planned Parenthood could receive state funding; it made it impossible for the organization to be funded. 

Regarding Planned Parenthood's First Amendment claim, the judge distinguished it from unconstitutional conditions cases such as Rust v. Sullivan.  Here, it was not that there were conditions attached to the funding, but that an organization was deemed ineligible based entirely on "participation in unrelated political conduct. This punitive aspect of the statute, arising from the plaintiff’s protected association with abortion related services, renders the statute unconstitutional."  Thus, the judge focused on the First Amendment right of association.

Discussed in both of the Planned Parenthood claims was the legislative intent of the statute.  Was the intent of the statute directed at Planned Parenthood?  The judge soundly rejected the state defendants "suggestion that the statute was simply designed to prioritize funding to entities who have a higher percentage of poor clients" as a post-hoc, “litigation-spawned” attempt to find some alternative, benign rationale for the statute.  The judge also considered the statement of the amendment's sponsor, Lance Kinzer, including on the floor of the House and on his facebook page:

Delighted to announce that the KS House just approved my floor amendment to deny Title X funding to Planned Parenthood for the balance of FY2011. The vote was 91-26, a great victory on the first pro-life floor vote
of the session.

Similarly, Governor Brownback, who signed the statute into law, was quoted by The Lawrence, Kansas Journal-World as hailing the Kinzer amendment on the grounds that it would “zero out funding of Planned Parenthood.”  The judge found these were not isolated statements, but indicative of legislative intent both to "punish" Planned Parenthood in contravention of its free association First Amendment rights and to contradict the direct mandate of the federal law.

RR