Thursday, July 14, 2016

Agency Power, Executive Power, and Gender Equality in School Bathrooms

While the constitutional issues are not front and center in the controversies and litigation over gender identity and school bathroom access, the disputes certainly implicate constitutional issues of equal protection, federalism, unconstitutional conditions, and executive/agency as well as judicial powers.

A Virginia school board has filed a stay application in the United States Supreme Court pending a petition for writ of certiorari to the Fourth Circuit's opinion in G.G. v. Glouster County School Board.  In G.G., a divided panel, reversing the senior district judge, concluded that Title IX's ban on sex discrimination,  20 U.S.C. § 1681(a), requires schools to provide transgender students access to restrooms congruent with their gender identity. (The senior district judge had not reached the Equal Protection claim, so it was not before the Fourth Circuit.)  In construing Title IX, the Fourth Circuit relied upon a January 7, 2015 opinion letter from the United States Department of Education, Office for Civil Rights, with a similar conclusion.  The Fourth Circuit accorded deference to the agency interpretation of Title IX under Auer v. Robbins (1997), because the relevant regulation was ambiguous - - - perhaps not in the plain meaning, but in its application:

Although the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms. We conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading— determining maleness or femaleness with reference exclusively to genitalia—and the Department’s interpretation—determining maleness or femaleness with reference to gender identity. [citation omitted].  It is not clear to us how the regulation would apply in a number of situations—even under the Board’s own “biological gender” formulation. For example, which restroom would a transgender individual who had undergone sex-reassignment surgery use? What about an intersex individual? What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident? The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.

The Fourth Circuit panel rejected G.G.'s request to have the case reassigned to another district judge, but did reverse, vacate, and remand the district court's order dismissing the complaint.  The Fourth Circuit panel, in an unpublished opinion on July 12, denied the school board's motion for a stay pending appeal, again with one dissent. 

The stay application in the United States Supreme Court pending a petition for writ of certiorari argues that the Fourth Circuit's opinion in an "extreme example" of judicial deference to an administrative agency and is the "perfect vehicle" for the Court's reconsideration of Auer v. Robbins (1997).  The motion notes that several Justices have signaled such a reconsideration might be warranted, notably the late Justice Scalia, as well as Alito and Thomas, and Chief Justice Roberts.  The application also argues that the DOE and DOJ have "seized momentum" and issued further instructions (citing a May 13 DOE  "Dear Colleagues" Letter) which would further solidify Auer deference, making action by the Court necessary.

Meanwhile, thirteen states have filed a complaint and application for preliminary injunction in Texas, based on the same letter:

On May 13, 2016, following years of incremental preambles (“guidances,” “interpretations,” and the like), Defendants informed the nation’s schools that they must immediately allow students to use the bathrooms, locker rooms and showers of the student’s choosing, or risk losing Title IX-linked funding. And employers that refuse to permit employees to utilize the intimate areas of their choice face legal liability under Title VII. These new mandates, putting the federal government in the unprecedented position of policing public school property and facilities, inter alia, run roughshod over clear lines of authority, local policies, and unambiguous federal law.

The central challenge is failure to conform with the Administrative Procedure Act, including notice and comment for rule-making.  However, the complaint also alleges that the federal government defendants "violated the Spending Clause" by engaging in "unconstitutional coercion" by "economic dragooning."  The complaint relies on that portion of the "Obamacare" case, NFIB v. Sebelius, in which a plurality found constitutional issues with the medicaid expansion program.
This portion of the complaint is less than 2 pages (in a 39 page document) and is cursory at best, although perhaps these arguments have the potential to be developed.
 
In short, it seems issues of gender-identity will be the subject of much litigation, perhaps even at the United States Supreme Court, in the next few years.
 
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[image via]

July 14, 2016 in Cases and Case Materials, Current Affairs, Equal Protection, Executive Authority, Federalism, Fourteenth Amendment, Gender, Interpretation, Sexuality, Theory | Permalink | Comments (0)

Friday, July 1, 2016

Federal Judge Issues Preliminary Injunction Against Mississippi Law Seeking to Protect LGBT Discrimination

In a 60 page opinion in Barber v. Bryant, United States District Judge Carlton Reeves (pictured below) found Mississippi HB 1523, set to become effective July 1, constitutionally problematical under both the Establishment Clause and the Equal Protection Clause, and thus preliminary enjoined its enforcement.

The bill, Protecting Freedom of Conscience from Government Discrimination Act," sought to insulate the specific "sincerely held religious beliefs or moral convictions" that:
(a)  Marriage is or should be recognized as the union of one man and one woman;
(b)  Sexual relations are properly reserved to such a marriage; and
(c)  Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.

Judge Reeves characterized HB 1523 as a predictable overreaction to the Court's same-sex marriage opinion in Obergefell v. Hodges a year ago.  In discussing the debates around the HB 152 and its texts, Judge Reeves also noted that the challenges to HB 1523 were also predictable, providing his rationale for consolidating the four cases.

Judge Reeves then considered standing of the various plaintiffs as well as Eleventh Amendment immunity, followed by the established preliminary injunction standards which have at their heart the "substantial likelihood of success on the merits."

On the Equal Protection claim, Judge Reeves relied on Romer v. Evans, and found that the legislative history established animus in intent:

The title, text, and history of HB 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell. The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions. LGBT Mississippians, in turn, were “put in a solitary class with respect to transactions and relations in both the private and governmental spheres” to symbolize their second-class status.

CarltonReeves
Judge Carlton Reeves via

Judge Reeves also found that the law would have a discriminatory effect.  Judge Reeves applied the lowest level of scrutiny, but found that even "under this generous standard, HB 1523 fails." He agreed  with the State's contention that HB 1523 furthers its “legitimate governmental interest in protecting religious beliefs and expression and preventing citizens from being forced to act against those beliefs by their government" is a "legitimate governmental interest."  But concluded that the interest is "not one with any rational relationship to HB 1523."  Indeed, the court declared that "deprivation of equal protection of the laws is HB 1523’s very essence."

On the Establishment Clause claim, Judge Reeves rehearsed the history of the Clause before focusing on two conclusions: HB 1523 "establishes an official preference for certain religious beliefs over others" and "its broad religious exemption comes at the expense of other citizens."For this latter point, Judge Reeves interestingly relied on and distinguished the recent controversial Burwell v. Hobby Lobby construing RFRA to confer a religious conscience accommodation to closely-held corporations:

The difference is that the Hobby Lobby Court found that the religious accommodation in question would have “precisely zero” effect on women seeking contraceptive coverage, and emphasized that corporations do not “have free rein to take steps that impose disadvantages on others.” The critical lesson is that religious accommodations must be considered in the context of their impact on others.

Unlike Hobby Lobby, HB 1523 disadvantages recusing employees’ coworkers and results in LGBT citizens being personally and immediately confronted with a denial of service.

[citations omitted].

 Judge Reeves opinion is careful and well-reasoned, but is nevertheless sure to be appealed by Mississippi officials unless they alter their litigation posture.

 

July 1, 2016 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Establishment Clause, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0)

Thursday, June 23, 2016

United States Supreme Court in Fisher II: UT Affirmative Action Plan Constitutional

On Fisher's second trip to the Court, the United States Supreme Court has found that the affirmative action plan of the University of Texas did not violate the Equal Protection Clause.  In a relatively brief opinion for the majority, Justice Kennedy, joined by Ginsburg, Breyer, and Sotomayor - - - recall Kagan was recused - - - affirmed the Fifth Circuit's conclusion rebuffing Fisher's equal protection claim (and some believed rebuffing the Supreme Court's remand).

Recall that Fisher I was a 7-1 opinion. (Only Justice Ginsburg dissented in Fisher I; Justice Kagan was recused, and Justice Sotomayor's joining of the majority has been subject to much speculation after her impassioned dissent in Schuette v. BAMN) remanding the case to the Fifth Circuit.  On remand in 2014, the Fifth Circuit somewhat surprisingly essentially reiterated its earlier position, holding that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.

During oral argument, the possibility that there could ever be a constitutional mention of race in an admissions program was at issue, with Breyer actually "spelling it out" (After Breyer asked for an example of using race and Fisher's attorney replied "you could give more emphasis to socio-economic factors," Breyer stated: "That's not to use race. I'm saying r­-a­-c­-e, race. I want to know which are the things they could do that, in your view, would be okay. Because I'm really trying to find out. Not fatal in fact, we've said. Okay? Not fatal in fact. Fine.")

Essentially, the Court today found that there were no workable race-neutral means to accomplish UT's compelling interest in diversity:

In short, none of petitioner’s suggested alternatives— nor other proposals considered or discussed in the course of this litigation—have been shown to be “available” and “workable” means through which the University could have met its educational goals, as it understood and defined them in 2008. Fisher I, supra, at ___ (slip op., at 11). The University has thus met its burden of showing that the admissions policy it used at the time it rejected peti­tioner’s application was narrowly tailored.

Kennedy's opinion ends with a paean to diversity and a warning, including to UT:

A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” Sweatt v. Painter, 339 U. S. 629, 634 (1950). Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.

In striking this sensitive balance, public universities, like the States themselves, can serve as “laboratories for experimentation.” United States v. Lopez, 514 U. S. 549, 581 (1995) (KENNEDY, J., concurring); see also New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admis­sions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.

The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.

Justice Alito disagreed strongly and read portions of his dissent from the bench.  His dissent was joined by Chief Justice Roberts and Justice Thomas (who also wrote briefly separately).  Alito's 50 page dissent argues that the means chosen is not satisfied, but also questions diversity as a compelling governmental interest:

The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve. Its primary argument is that merely invoking “the educational benefits of diversity” is sufficient and that it need not identify any metric that would allow a court to determine whether its plan is needed to serve, or is actually serving, those interests.

Interestingly, Alito ends by suggesting that perhaps Amanda Fisher has no standing after all, and implying that his colleagues' (or one particular colleague?) integrity has eroded:  "The majority cannot side with UT simply because it is tired of this case."

 

 

 

June 23, 2016 in Affirmative Action, Equal Protection, Federalism, Fourteenth Amendment, Race | Permalink | Comments (0)

Monday, June 20, 2016

Cleveland RNC Convention Protest Zone Challenged

On behalf of Citizens for Trump, the ACLU has filed a complaint against the City of Cleveland for its Event Zone Permit Regulations, arguing that the regulations and the delayed permit processing, violate the First Amendment, as well as the Ohio Constitution and the Due Process Clause.

Central to the First Amendment claim is the contention that the "event zone" is far too large and 

apply far beyond the part of the city where the Convention activities will take place, and instead encompass a 3.3-square mile expanse that includes business districts and neighborhoods where people live, sleep and conduct their daily activities.

Cleveland zone

Additionally, the complaint alleges that the permitting regulations are unduly restrictive, limited in number, space, and time.  ("The City will not issue any permits for any kind of public gathering or parade in the Event Zone throughout the Convention period, except for one designated parade route that lies along the southern border of the Zone. The City will only allow permit holders to use that route for 50 minutes each, and only 18 of these 50-minute parade slots are available during the entire four-day Convention."

The Cleveland regulations ban a host of dangerous items within the zone.  This includes firearms, and interestingly guns are banned in the convention arena itself, a stance that has attracted some controversy given the Second Amendment interpretations by the RNC.  However, the ban in the zone extends beyond explosives, drones, fireworks, and rockets, to other less predictable items such as aerosol cans, locks, ladders, canned goods, and tennis balls.  There is an exemption for persons who live or work in the event zone, or are on law enforcement or medical duty.

Nevertheless, the ACLU challenge may be a difficult one. The district judge considering this challenge will undoubtedly be aware that the RNC 2016 convention is predicted to be volatile - - - inside and out. The doctrine on free speech zones and protest zones has been increasingly accepted by the courts with deference to the government.   Recall Wood v. Moss in which the United States Supreme Court unanimously if implicitly validated free speech zones used in a Presidential appearance.  While it was a Bivens action including a claim of qualified immunity, the Court importantly also rejected the claim of viewpoint discrimination - - - that the Secret Service’s manner of “zoning” the protestors discriminating against anti-Bush demonstrators and in favor of pro-Bush demonstrators. The 2004 RNC convention in New York City also had its share of First Amendment litigation, with the Second Circuit upholding the constitutionality of various arrests, again against a claim for damages.

Some good reporting by Eric Heisig and Andrew Tobias of cleveland.com; expect more as the Republic National Convention approaches, July 18-21, in Cleveland.

 

June 20, 2016 in Current Affairs, Federalism, First Amendment, Speech | Permalink | Comments (0)

Thursday, June 9, 2016

Supreme Court Finds Due Process Violated When Prosecutor-Turned-Judge Did Not Recuse

In its highly anticipated opinion in Williams v. Pennsylvania, the United States Supreme Court found that the failure of Chief Justice of the Pennsylvania Supreme Court Ronald Castille to recuse himself in the death penalty review of Williams' postconviction appeal constituted a violation of the Due Process Clause.

Recall that Chief Justice Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013.  Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row." One of those people on death row is Terrance Williams, convicted at age 18 and whose story has attracted much interest. Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief.  Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty.  Williams' post-conviction claim, moreover, is based on prosecutorial misconduct. 

Writing for the five Justice majority, Justice Kennedy relied on the Court's previous decision in Caperton v. A.T. Massey Coal. Co. in 2009 - - - which Kennedy also authored - - - to articulate the applicable "objective standard" of recusal when the "likelihood of bias on the part of the judge 'is too high to be constitutionally tolerable.'" While Kennedy noted that the "due process precedents do not set forth a specific test governing recusal when, as here, a judge had prior involvement in a case as a prosecutor," the Court articulated a clear rule:

The Court now holds that under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.

This rule, the Court reasoned, is based upon the due process guarantee that “no man can be a judge in his own case,” which would have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision."

Justice Kennedy's relatively brief opinion for the Court specifically rejected each of Pennsylvania's arguments. 

As to the passage of time between the prosecutorial and judicial events, the Court reasoned that

A prosecutor may bear responsibility for any number of critical decisions, including what charges to bring, whether to extend a plea bargain, and which witnesses to call. Even if decades intervene before the former prosecutor revisits the matter as a jurist, the case may implicate the effects and continuing force of his or her original decision. In these circumstances, there remains a serious risk that a judge would be influenced by an improper, if inadvertent, motive to validate and preserve the result obtained through the adversary process. The involvement of multiple actors and the passage of time do not relieve the former prosecutor of the duty to withdraw in order to ensure the neutrality of the judicial process in determining the consequences that his or her own earlier, critical decision may have set in motion.

As to the argument that Castille's authorization to seek the death penalty against Williams was insignificant in a large office, the Court specifically found that "characterization cannot be credited." First, the Court stated that it would not assume that the District Attorney treated so major a decision as whether or not to pursue the death penalty as a "perfunctory task requiring little time, judgment, or reflection."  Second, the Court noted that "Chief Justice Castille's own comments while running for judicial office" refute any claim that he believed he did not play a major role in seeking death sentences.  And third, the Court noted that claim and finding that the trial prosecutor had engaged in multiple and intentional Brady violations, it would be difficult for "a judge in his position" not to view this as a "criticism of his former office, and, to some extent, of his own leadership and supervision as district attorney."

As to the argument that Castille did not cast the "deciding vote" - - - unlike the situation in Caperton - - - and so any error was harmless, the Court stressed the role of the court as a unit:

A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias de- means the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part. An insistence on the appearance of neutrality is not some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication. Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself. When the objective risk of actual bias on the part of a judge rises to an unconstitutional level, the failure to recuse cannot be deemed harmless.

Chief Justice Roberts, joined by Justice Alito, and Justice Thomas writing separately, dissented - - - not surprising given that they have also dissented in Caperton.  Roberts's opinion draws the line between due process and judicial ethics: just because it was an ethics violation, does not mean it is a due process violation.  Roberts states that it is "up to state authorities" to determine whether recusal is required. 

In sum, this extension of Caperton to judicial decisions by former prosecutors and the Court's articulation of a clear rule should result in a new regime of uniform recusal mandated by the Due Process Clause.

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 [image NYPL digital collection, "A Murder Trial in the Court of General Sessions, circa 1901, via]

June 9, 2016 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Federalism, Fourteenth Amendment, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0)

Saturday, May 7, 2016

Alabama Chief Justice Roy Moore Charged with Judicial Misconduct Based on Same-Sex Marriage Rulings

The continuing saga of the controversial Chief Justice of the Alabama Supreme Court, Justice Roy S. Moore, has taken another turn with a complaint against him filed by the Judicial Inquiry Commission of the State of Alabama, in the special Court of the Judiciary. [While the entire complaint is almost 300 pages, more than 250 pages are devoted to the 17 appendixes of supporting documents including opinions and letters].

As the complaint notes, this is not the first time that Justice Roy Moore has been before the Court of the Judiciary: the court removed him from office in 2003 for violation of the Alabama Canons of Judicial Ethics for failure to obey an injunction from a federal district court.  (He was re-elected in 2013.) While that earlier controversy revolved around the placement of the Ten Commandments in the courthouse, the present one concerns Justice Moore's actions on same-sex marriage.  As the complaint summarizes it, Chief Justice Moore's pertinent conduct "involves the interplay of four cases":

 The complaint gives a good chronology of the various events which have been contentious.  As we previously noted, the Southern Poverty Law Center filed a judicial ethics complaint after Chief Justice Moore penned a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order on same-sex marriage.

One of the more interesting aspects of the ethics charges is this:

On January 6, 2016—despite the United States Supreme Court's ruling in Obergefell, despite the United States District Court's injunction against all Alabama probate judges that specifically enjoined them from obeying any contrary order of the Alabama Supreme Court, and despite the Eleventh Circuit's October 20, 2015 order recognizing the abrogation of API by Obergefell—Chief Justice Moore, under the guise of his administrative authority as Chief Justice, unilaterally issued an Administrative Order to all probate judges that they continue to have a ministerial duty under API to enforce the Alabama marriage laws against same-sex couples.   His Administrative Order states in part:

IT IS ORDERED AND DIRECTED THAT: Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.

[paragraph 38].  In paragraph 3, the complaint stated "Significant to the context of this matter is that the vast majority of probate judges in this state are not licensed to practice law."  However, the probate judges would be bound by the Canons of Judicial Ethics; the complaint alleges that Moore "flagrantly disregarded and abused his authority as chief administrative officer of Alabama's judicial branch by "ordering or appearing to order" the probate judges not to obey the federal district court's injunction and thus ordering the probate judges to commit violations of the Canons of Judicial Ethics "knowingly subjecting them to potential prosecution and removal from office."

Thus, it is not only Moore's own refusal to abide by federal interpretations of the United States Constitution, but his ordering of subordinates to do so that are included in the six specific charges against him, all of which involve alleged violations of Canons 1, 2, and 3 of the Alabama Canons of Judicial Ethics, which, broadly stated are:

  • Canon 1.     A judge should uphold the integrity and independence of the judiciary.
  • Canon 2.     A judge should avoid impropriety and the appearance of impropriety in all his activities.
  • Canon 3.     A judge should perform the duties of his office impartially and diligently.

Chief Justice Moore has reportedly been suspended, pending the decision of the Alabama Court of the Judiciary, which is composed of judges, lawyers, and lay persons, and has the power to remove the Justice.  Interestingly, appeal from the Alabama Court of the Judiciary is to Supreme Court of Alabama.

 

 

video via

May 7, 2016 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Interpretation, Recent Cases, Sexual Orientation, State Constitutional Law, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)

Friday, May 6, 2016

Ninth Circuit Says Arizona Identity-Theft-in-Employment Law Not Preempted

The Ninth Circuit ruled earlier this week that the federal Immigration Reform and Control Act did not on its face preempt Arizona's laws banning the use of a false identity to obtain employment.

The ruling reverses a lower court's preliminary injunction against the Arizona laws (allowing them to go into effect), but leaves open the possibility that they could be preempted as applied in the next round of motions.

The case involves Arizona's efforts to regulate the use of identity theft to obtain employment. The state's bans were designed in part to clamp down on unauthorized aliens' use identity theft to obtain employment. But they were also designed to clamp down on U.S. citizens' use of identity theft to obtain employment.

The plaintiffs in the case--an advocacy organization and individual unauthorized aliens--sued, arguing that the federal IRCA preempted Arizona's laws, based on the Court's analysis striking much of S.B. 1070 in Arizona. (The Court in Arizona held that the state could not criminalize an unauthorized alien for working, because the state law would pose an obstacle to the federal objective, codified in the federal act, to criminalize only the employer (and not the employee).) The plaintiffs moved for a preliminary injunction based on their facial preemption claim, and the district court granted it.

The Ninth Circuit reversed. The court held that IRCA didn't likely facially preempt Arizona's laws, because even under Arizona the laws could be applied in a constitutional way. In particular, Arizona's laws applied to U.S. citizens using identity theft to obtain employment, too--and nothing in federal law prohibits that. This constitutional application of Arizona's laws meant that they couldn't be facially preempted by IRCA, even if an application of the laws to unauthorized aliens would be preempted under Arizona.

The court noted that the Supreme Court hasn't squarely decided whether the facial-challenge standard in Salerno applied to preemption claims, or if a lower standard applied. (Salerno says that in order to succeed on a facial challenge a plaintiff has to show that "no set of circumstances exists under which the Act would be invalid." That's a high bar.) Without guidance from the Court, the Ninth Circuit applied Salerno, consistent with circuit law.

The ruling is a setback for the plaintiffs. But it apparently leaves open the possibility that a court could hold that federal law preempts Arizona's laws as applied to unauthorized aliens. More to come . . . .

May 6, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Friday, April 22, 2016

Divided Second Circuit Upholds New York's "Maintain an Office" Requirement for Nonresident Attorneys

In the divided panel opinion in Schoenefeld v. Schneiderman,  a Second Circuit panel majority upheld the constitutionality of a requirement that attorneys who practice law in New York but do not reside within the state be required to maintain an office in New York.

The statute, N.Y. Judiciary Law §470, provides:

A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state.

Schoenefeld, admitted to practice in New York but who lived in New Jersey and maintained her main office in New Jersey, wished to practice law in New York without having the expense of a separate office in New York.  She challenged §470 on several constitutional grounds.  The district judge found that the statute violated the Privileges and Immunities Clause, Art. IV, §2, cl.1.   The lack of clarity in the statute caused the Second Circuit on appeal to certify the question of the "minimum requirements" to satisfy §470 to New York's highest court.  The New York Court of Appeals answered the certified question: §470 "requires nonresident attorneys to maintain a physical office in New York."

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Syndicate and St. Paul Buildings, Highest Office Buildings in the World, New York City, 1920, via

Writing for the Second Circuit panel majority, Judge Reena Raggi, who was joined by Judge Susan Carney, concluded that §470 had no discriminatory or protectionist purpose.  Instead, §470 - - - with "its origins in an 1862 predecessor law" - - - was actually enacted to reverse a court ruling that had barred a nonresident attorney from practicing law at all given the difficulties of service of process.  Despite changes and recodifications, the majority concluded that there was no showing that the current §470 was "being maintained for a protectionist purpose."  Again, the majority found that §470 was enacted for "the nonprotectionist purpose of affording such attorneys a means to establish a physical presence in the state akin to that of resident attorneys, thereby eliminating a court‐identified service‐of‐process concern."

The majority relied in large part on the Supreme Court's unanimous 2013 decision in McBurney v. Young holding that a state can restrict its own freedom of information law, FOIA, to its own citizens without violating the Privileges and Immunities Clause. 

In his vigorous dissenting opinion, Judge Peter Hall argued that the real import of §470 is that resident attorneys need not maintain an office while nonresident attorneys must maintain an office, thus discriminating.  The next step in the analysis, Judge Hall contended, should be to consider the state's justification for such discrimination.  Judge Hall distinguished McBurney based on the "simple reason that the Virginia FOIA is not an economic regulation, nor does it directly regulate the right to pursue a common calling."  Hall's dissent criticized the majority for imposing a requirement of discriminatory intent as part of a prima facie case that would be appropriate under the Equal Protection Clause but is not under the Privileges and Immunities Clause. Moreover, Judge Hall concluded that New York's "proffered justifications for the in‐state office requirement— effectuating service of legal papers, facilitating regulatory oversight of nonresident attorneys’ fiduciary obligations, and making attorneys more accessible to New York’s courts—are plainly not sufficient."

Thus, New York can constitutionally compel attorneys who do not reside in New York to maintain a physical office in New York.

April 22, 2016 in Courts and Judging, Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Tuesday, April 12, 2016

Tenth Circuit: Utah's Ban on Polygamous Cohabitation and Marriage Stands

The Tenth Circuit has ruled that the Browns - - - of Sister Wives reality television fame - - - cannot challenge Utah's ban on polygamous cohabitation and marriage under Article III judicial power constraints.  In its opinion in Brown v. Buhman, the unanimous three judge panel found that the matter was moot. 

Recall that federal district judge Clark Waddoups finalized his conclusion from his previous opinion that Utah's anti-bigamy statute is partially unconstitutional. The statute, Utah Code Ann. § 76-7-101, provides:

  •             (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
  •             (2) Bigamy is a felony of the third degree.
  •             (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.

 [emphasis added].  Judge Waddoups concluded that the "the cohabitation prong does not survive rational basis review under the substantive due process analysis."  This analysis implicitly imported a type of equal protection analysis, with the judge concluding:

Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.

On appeal, the Tenth Circuit panel held that the district judge should not have addressed the constitutional claims because the case was moot.  Even assuming the Browns had standing when the complaint was filed, any credible threat of prosecution was made moot by a Utah County Attorney's Office (UCAO) 2012 policy which stated that "the UCAO will prosecute only those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse."  The opinion stated that nothing "in the record" suggested that Browns fit into this category and additionally, there was an affirmation from the defendant that "the UCAO had 'determined that no other prosecutable crimes related to the bigamy allegation have been or are being committed by the Browns in Utah County as of the date of this declaration. ' ”

The opinion found that the "voluntary cessation" exception to mootness was not applicable because that was intended to prevent gamesmanship: a government actor could simply reenact the challenged policy after the litigation is dismissed. 

Yet the problem, of course, is that the statute remains "on the books" and the policy is simply not to enforce it except in limited cases.  The court rejected all of the Browns' arguments that the UCAO statement did not moot the challenge to the constitutionality of the statute including a precedential one; the possibility that a new Utah County Attorney could enforce the statute; the failure of defendant, the present Utah County Attorney, to renounce the statute's constitutionality; and the tactical motives of the defendant, the present Utah County Attorney, in adopting the policy.  The court stated:

The first point misreads the case law, the second is speculative, the third is minimally relevant, and the fourth may actually assure compliance with the UCAO Policy because any steps to reconsider would almost certainly provoke a new lawsuit against him. Such steps also would damage Mr. Buhman’s credibility as a public official and might even expose him to prosecution for perjury and contempt of federal court for violating his declaration. Assessing the veracity of the UCAO Policy must account for all relevant factors, which together show no credible threat of prosecution of the Browns.

Thus, like other criminal statutes that are said to have fallen into "desuetude," the statute seems immune from constitutional challenge.

In a very brief section, the court does note that the plaintiffs no longer live in Utah, but have moved to Nevada, another rationale supporting mootness.  The Nevada move is discussed in the video below featuring some of the children involved.

 

 

 

 

April 12, 2016 in Courts and Judging, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Mootness, Opinion Analysis, Religion, Sexuality, Standing, Television | Permalink | Comments (1)

Friday, April 8, 2016

First Circuit: Same-Sex Marriage Ruling in Obergefell Applies to Puerto Rico

In a brief per curiam opinion, a panel of the First Circuit essentially reversed the ruling of Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez that denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.

The panel stated:

The district court's ruling errs in so many respects that it is hard to know where to begin. The constitutional rights at issue here are the rights to due process and equal protection, as protected by both the Fourteenth and Fifth Amendments to the United States Constitution. Obergefell v. Hodges; United States v. Windsor. Those rights have already been incorporated as to Puerto Rico. Examining Bd. Of Eng'rs, Architects & Surveyors v. Flores de Otero (1976). And even if they had not, then the district court would have been able to decide whether they should be. See Flores de Otero.

In any event, for present purposes we need not gild the lily.  Our prior mandate was clear . . . 

[citations and footnote omitted].

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After quoting its previous opinion, the panel then addressed the procedural posture of the case, noting that the district court "compounded its error (and signaled a lack of confidence in its actions), by failing to enter a final judgment to enable an appeal in ordinary course."  Both parties therefore sought a writ of mandamus, which the court granted and additionally "remitted" the case to the district court "to be assigned randomly by the clerk to a different judge to enter judgment in favor of the Petitioners promptly, and to conduct any further proceedings necessary in this action."

The First Circuit did not explicitly discuss the district judge's conclusions regarding Puerto Rico's status and his argument that under The Insular Cases (1901), territorial incorporation of specific rights is questionable.  But  the First Circuit did cite contrary authority and made clear its disagreement.  The intensity of the disagreement is also made evident by the First Circuit's somewhat unusual instruction that Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez be removed from the case.

 

April 8, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Interpretation, Opinion Analysis, Sexual Orientation, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)

Friday, April 1, 2016

Federal Judge Enjoins Mississippi's Same-Sex Couple Adoption Ban as Unconstitutional

In his opinion  in Campaign for Southern Equality v. Mississippi Department of Human Services (DHS), United States District Judge Daniel Jordan III found that Mississippi Code §93-17-3(5) prohibiting "adoption by couples of the same gender" violates the Equal Protection Clause and ordered that the Executive Director of DHS is preliminarily enjoined from enforcing the statute.

The majority of the 28 page opinion is devoted to matters of standing and the Eleventh Amendment relevant to the multiple plaintiffs and multiple defendants, including judges.  However, Judge Jordan did find that the individual plaintiffs had standing and DHS was an appropriate defendant.

 On his discussion of likelihood to prevail on the merits, Judge Jordan wrote in full:

Obergefell [v. Hodges] held that bans on gay marriage violate the due-process and equal-protection clauses. It is the equal-protection component of the opinion that is relevant in the present dispute over Mississippi’s ban on gay adoptions. Under traditional equal-protection analysis, a law that does not “target[ ] a suspect class” or involve a fundamental right will be upheld, “so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631 (1996). Conversely, “if a classification does target a suspect class or impact a fundamental right, it will be strictly scrutinized and upheld only if it is precisely tailored to further a compelling government interest.” Sonnier v. Quarterman, 476 F.3d 349, 368 (5th Cir. 2007) (citation omitted).

In this case, Defendants argue that rational-basis review applies. But Obergefell made no reference to that or any other test in its equal-protection analysis. That omission must have been consciously made given the Chief Justice’s full-throated dissent. 135 S. Ct. at 2623 (Roberts, C.J., dissenting) (“Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases . . . .”).

While the majority’s approach could cause confusion if applied in lower courts to future cases involving marriage-related benefits, it evidences the majority’s intent for sweeping change. For example, the majority clearly holds that marriage itself is a fundamental right when addressing the due-process issue. Id. at 2602. In the equal-protection context, that would require strict scrutiny. But the opinion also addresses the benefits of marriage, noting that marriage and those varied rights associated with it are recognized as a “unified whole.” Id. at 2600. And it further states that “the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.” Id. at 2604 (emphasis added).

Of course the Court did not state whether these other benefits are fundamental rights or whether gays are a suspect class. Had the classification not been suspect and the benefits not fundamental, then rational-basis review would have followed. It did not. Instead, it seems clear the Court applied something greater than rational-basis review. Indeed, the majority never discusses the states’ reasons for adopting their bans on gay marriage and never mentions the word “rational.”

While it may be hard to discern a precise test, the Court extended its holding to marriage- related benefits—which includes the right to adopt. And it did so despite those who urged restraint while marriage-related-benefits cases worked their way through the lower courts. According to the majority, “Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.” Id. at 2606 (emphasis added).

The full impact of that statement was not lost on the minority. Chief Justice Roberts first took issue with the majority’s failure to “note with precision which laws petitioners have challenged.” Id. at 2623 (Roberts, C.J., dissenting). He then criticized the majority for jumping the gun on marriage-related cases that might otherwise develop:

Although [the majority] discuss[es] some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. . . . Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.

Id. at 2623–24 (Roberts, C.J., dissenting) (emphasis added).

In sum, the majority opinion foreclosed litigation over laws interfering with the right to marry and “rights and responsibilities intertwined with marriage.” Id. at 2606. It also seems highly unlikely that the same court that held a state cannot ban gay marriage because it would deny benefits—expressly including the right to adopt—would then conclude that married gay couples can be denied that very same benefit.

Obergefell obviously reflects conflicting judicial philosophies. While an understanding of those positions is necessary for this ruling, it is not this Court’s place nor intent to criticize either approach. The majority of the United States Supreme Court dictates the law of the land, and lower courts are bound to follow it. In this case, that means that section 93-17-3(5) violates the Equal Protection Clause of the United States Constitution.

 The judge's interpretation of Obergefell v. Hodges interestingly focuses on the dissent of Chief Justice Roberts to explain the doctrine of Kennedy's opinion for the Court, a phenomenon familiar from the use of Justice Scalia's dissents in the same-sex marriage litigation.

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April 1, 2016 in Courts and Judging, Due Process (Substantive), Eleventh Amendment, Equal Protection, Family, Federalism, Fourteenth Amendment, Sexual Orientation | Permalink | Comments (0)

Wednesday, March 9, 2016

United States District Judge: Same-Sex Ruling (and 14th Amendment) Do Not Apply in Puerto Rico

In a 10 page opinion, Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.

Recall that in October 2104, Judge Juan Perez-Gimenez had largely relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question" to find that there was no constitutional right to same-sex marriage.  In the appeal to the First Circuit, the Solicitor General of Puerto Rico decided that it would not defend the same-sex marriage ban.   And then the United States Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples. 

The First Circuit thus remanded Conde-Vidal v. Garcia-Padilla to Judge Juan Perez-Gimenez "for further consideration in light of Obergefell v. Hodges" and specifically stated "We agree with the parties' joint position that the ban is unconstitutional." The parties submitted a  Joint Motion for Entry of Judgment with a proposed order.

In rejecting the parties' joint motion, Judge Juan Perez-Gimenez contended that because Puerto Rico was a "stranger to the proceedings" in Obergefell which involved same-sex marriage bans in the Sixth Circuit (Michigan, Kentucky, Ohio, and Tennessee), it was not bound by the decision.  This reasoning is similar to some of the arguments most recently raised by some Justices on the Supreme Court of Alabama. 

Additionally - - - and perhaps with more legal grounding - - - he concluded that Obergefell does not apply to Puerto Rico because it is not a "state":

the fundamental right to marry, as recognized by the Supreme Court in Obergefell, has not been incorporated to the juridical reality of Puerto Rico.

The judge based this "juridical reality" on his conclusion that the doctrine of selective incorporation only applies to states and not Puerto Rico, or perhaps more correctly, that the Fourteenth Amendment itself is not applicable to Puerto Rico "insofar as it is not a federated state." 

Additionally, Judge Perez-Gimenez asks "does the Constitution follow the flag?" and concludes that under The Insular Cases (1901), territorial incorporation of specific rights is questionable:

Notwithstanding the intense political, judicial and academic debate the island’s territorial status has generated over the years, the fact is that, to date, Puerto Rico remains an unincorporated territory subject to the plenary powers of Congress over the island under the Territorial Clause.More importantly, jurisprudence, tradition and logic teach us that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment. As explained by the Supreme Court, “noting the inherent practical difficulties of enforcing all constitutional provisions ‘always and everywhere,’ the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed.” Boumedine v. Bush. 

Thus, this court believes that the right to same-sex marriage in Puerto Rico requires: further judicial expression by the U.S. Supreme Court; or the Supreme Court of Puerto Rico, see e.g. Pueblo v. Duarte, 109 D.P.R. 59 (1980)(following Roe v. Wade, 410 U.S. 113 (1973) and declaring a woman’s right to have an abortion as part of the fundamental right to privacy guaranteed under the Fourteenth Amendment); incorporation through legislation enacted by Congress, in the exercise of the powers conferred by the Territorial Clause, see Const. amend. Art. IV, § 3; or by virtue of any act or statute adopted by the Puerto Rico Legislature that amends or repeals Article 68 [prohibiting same-sex marriage].

In staking out a position regarding Puerto Rico's status, Judge Perez-Gimenez's opinion reverberates with the two cases regarding Puerto Rico presently before the United States Supreme Court even as it looks back to his earlier opinion hostile to the right of same-sex marriage. 800px-Map_of_USA_PR

[updated: March 11, 2016:  Further discussion of these issues available here].

March 9, 2016 in Congressional Authority, Courts and Judging, Current Affairs, Due Process (Substantive), Federalism, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)

Friday, March 4, 2016

Alabama Supreme Court on Same-Sex Marriage

The Supreme Court of Alabama has issued its opinions- - - totaling 170 pages typescript - - - in Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County dismissing all pending petitions and motions that seek relief from having to issue marriage licenses.  And yet, the lengthy concurring opinions in the case contradict rather than support this dismissal.

Recall that in January, controversial Chief Justice of the Alabama Supreme Court Roy Moore issued an Administrative Order forbidding probate judges from issuing same-sex marriage licenses "contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act" since those laws "remain in full force and effect." Earlier, after an Alabama federal judge issued an opinion finding the denial of same-sex marriage unconstitutional, Justice Moore argued that the Alabama was not bound by the federal courts on the same-sex marriage issue.  In a March 2015 opinion  in  this same case - - - Ex parte State of Alabama ex rel. Alabama Policy Institute - - - known as API,  the court, without Justice Moore and over a dissent by Justice Shaw held  that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional. Recall that the United States Supreme Court declined to stay the federal judge's judgment.  A few months later, the United States Supreme Court decided Obergefell v. Hodges holding that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples.

In today's opinions, Chief Justice Moore is center-stage and plays a confusing part.

Ala-s-ct

First, he provides a "statement of nonrecusal."  He discusses his own participation in various aspects of this continuing litigation and concludes he is not reviewing his own Administrative Order but instead "the effect of Obergefell."  

Second, in his own "specially concurring" opinion, his ultimately conclusion is that Obergefell is incorrectly decided and that the Alabama Supreme Court is under no duty to obey it.  He writes quite personally:

I took my first oath to support the Constitution of the United States in 1965 at the United States Military Academy on the banks of the Hudson River at West Point, New York. On this very site General George Washington defended the northwest territory against British invasion during the Revolutionary War. I repeated that oath many times during my military service in Western Europe, Vietnam, and locations in the continental United States. Following my military service and upon graduation from the University of Alabama School of Law, I again took an oath to "uphold and support" the United States Constitution. As a private practitioner, deputy district attorney, circuit judge, and Chief Justice of the Alabama Supreme Court on two separate occasions, I took that oath and have administered it to other Judges, Justices, Governors, and State and local officials. In both civilian and military life the oath of loyalty to the Constitution is of paramount importance. **** The oath I took as a cadet at the United States Military Academy at West

Point stated, in part, "that I will at all times obey the legal orders of my superior officers, and the Uniform Code of Military Justice." 57 Bugle Notes, at 5 (1965) (emphasis added). Later, as a company commander in Vietnam, I knew the importance of following orders. The success or failure of a mission and the lives of others depended on strict adherence to the chain of command. The principle of obedience to superior orders is also crucial to the proper functioning of a court system. Nevertheless, the principle of obedience to superior officers is based on the premise that the order given is a lawful one.

He then discusses "Lt. William Calley, a unit commander at My Lai in Vietnam who was convicted of killing 22 innocent civilians," to support his "military analogy" that one should not simply "follow orders" when the orders are immoral.

Third,  Chief Justice Moore's opinion is the major, if not majority opinion. 

The opinion garnering the most Justices - - - three - - - is by Justice Stuart and is quite short, but speaks volumes.  It reads in full:

Motions and petitions are dismissed without explanation by this Court for numerous reasons as a matter of routine. When a Justice issues a writing concurring in or dissenting from an order summarily dismissing a pending motion or petition the writing expresses the explanation for the vote of only the Justice who issues the writing and of any Justice who joins the writing. Attributing the reasoning and explanation in a special concurrence or a dissent to a Justice who did not issue or join the writing is erroneous and unjust.

Justice Greg Shaw also concurs specially, but his is the opinion that supports the conclusion. Justice Shaw had dissented from the March 2015 Order.   He now concludes that given Obergefell, the March 2015 Order "no longer has a field of operation or any legal effect."  

It is the accepted legal doctrine and the historic legal practice in the United States to follow the decisions of the Supreme Court as authoritative on the meaning of federal law and the federal Constitution. Arguments have been put forth suggesting that this doctrine and this practice are incorrect. Those arguments generally have not been accepted by the courts in this country. For example, in Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court of the United States rejected the argument by certain state officials that they were not bound by that Court's decisions.

The idea that decisions of the Supreme Court of the United States are to be followed is not something new or strange. Thus, the members of this Court who would follow the Obergefell decision would not, as either Chief Justice Moore or Justice Parker suggests, be "bow[ing their] knee[s] to the self-established judicial despots of America," "blindly follow[ing] the unsubstantiated opinion of 'five lawyers,'" "'shrink[ing] from the discharge'" of duty, "betray[ing]" their oaths, "blatantly disregard[ing] the Constitution," standing "idly by to watch our liberties destroyed and our Constitution violated," participating in the "conversion of our republican form of government into an aristocracy of nine lawyers," or be adhering to a perceived "evil."  They would, quite frankly, be doing what the vast majority of past and present judges and lawyers in this country have always assumed the Constitution requires, notwithstanding the unconvincing arguments found in the requests before us and in the specially concurring opinion of Chief Justice Moore. I charitably say the arguments are "unconvincing" because virtually no one has ever agreed with their rationales.

 [footnote omitted].

Justice Shaw certainly seems to have the better view and the citation of Cooper v. Aaron is exactly on point.  But given the result, it does not seem as if the National Guard will be marching into Montgomery any time soon.

Could this part of the saga be concluded?

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March 4, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fundamental Rights, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US) | Permalink | Comments (4)

Thursday, January 21, 2016

Constitutionality of (Western) Federal Lands

William Perry Pendley, writing at the National Review, sets out the constitutional case against federal land ownership in the West.

He writes that "[t]he Founding Fathers intended all lands owned by the federal government to be sold," and that "[p]lacement of the Property Clause in Article IV demonstrates the Founder's intention to not provide Congress with absolute power over federal lands; otherwise the provision would have been in Article I." He also points to the Enabling Acts under which states were admitted to the Union.

And he points to Chief Justice Roberts's "equal state sovereignty" in Shelby County:

Something about [the disparities in federal land ownership between the states] seems unfair. After all, in Shelby County v. Holder in 2013, Chief Justice Roberts, writing for the Court, declared: "Not only do States retain sovereignty under the Constitution, there is also a 'fundamental principle of equal state sovereignty' among the States. . . . Over a hundred years ago, this Court explained that our Nation 'was and is a union of States, equal in power, dignity and authority.'" Where--one wonders, considering the fate of Josephine County, which after all is but an arm of the state of Oregon--is the "dignity in what has befallen its residents?

January 21, 2016 in Federalism, News | Permalink | Comments (1)

Monday, January 18, 2016

Daily Read: Taunya Banks on MLK and Education

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

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

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

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

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

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

[footnotes omitted; emphasis added]. 

 

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

Saturday, January 16, 2016

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

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

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

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

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

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

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

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

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

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

Friday, January 8, 2016

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

In Memoriam:

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

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

 

Here is Chief Judge Kaye's opinion in full:

 

Chief Judge Kaye (dissenting).

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

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

  1. Due Process

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. Equal Protection

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

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

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

  1. Heightened Scrutiny
  2. Sexual Orientation Discrimination

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

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

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

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

[*24]

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

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

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

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

[*25]2. Sex Discrimination

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

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

  1. Fundamental Right

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

  1. Rational-Basis Analysis

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

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

  1. Children

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

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

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

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

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

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

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

  1. Moral Disapproval

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

  1. Tradition

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

  1. Uniformity

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

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

III. The Legislature

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

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

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

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

footnotes:

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


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

Wednesday, January 6, 2016

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

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

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

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

 

 

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

Tuesday, December 15, 2015

Court Upholds Another Mandatory Arbitration Clause

Schwinn-steven
Steven D. Schwinn, John Marshall Law School

The Supreme Court yesterday upheld a mandatory arbitration clause in a consumer contract-of-adhesion, forcing the consumer-plaintiffs into arbitration (and out of the courts) to sue DIRECTTV over early termination fees. The ruling is yet another blow to consumers who seek to recover relatively small damages from corporations--the kinds of claims that are best suited for class action lawsuits (in courts). But yesterday's ruling all but bolts the door to the courts for these kinds of claims, as corporations increasingly include mandatory arbitration clauses in their standard-form consumer contracts.

At the same time, the opinion includes powerful federal supremacy language, and reminds us of the constitutional requirement that state court judges uphold federal law, explicitly mentioning federal civil rights. The ruling thus illustrates that the politics in preemption cases can be complicated, and that a federal-friendly ruling in one area (mandatory arbitration clauses) can have important implications in others (civil rights enforcement).

Of course, Congress can "reverse" the holding simply by changing the FAA, although that seems highly unlikely.

The case, DIRECTTV v. Imburgia, grew out of consumers' disputes with DIRECTTV over early termination fees. The plaintiffs' contracts with DIRECTTV (a standard-form contract of adhesion) included a mandatory arbitration clause and a class-arbitration waiver. In particular, the contracts said that "any Claim either of us asserts will be resolved only by binding arbitration," and that "[n]either you nor we shall be entitled to join or consolidate claims in arbitration." The contract also said that if the "law of your state" makes the waiver of class arbitration unenforceable, then the entire arbitration clause is unenforceable.

But at the time the parties contracted, California law said that a waiver of class arbitration in a consumer contract of adhesion was unconscionable and thus unenforceable. This rule came from the California Supreme Court's decision in Discover Bank v. Superior Court. This was the "law of your state," at least insofar as the parties understood it at the time of the contract, and would have rendered the entire arbitration clause unenforceable, allowing the plaintiffs' case to proceed in court (and not requiring arbitration).

An earlier Supreme Court case and the Federal Arbitration Act threw a wrench into that analysis. The Federal Arbitration Act says that a "written provision" in a contract providing for "settle[ment] by arbitration" of "a controversy . . . arising out of" that "contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." The Supreme Court ruled in AT&T Mobility v. Concepcion (2011) (after the parties contracted) that the FAA preempted California's Discover Bank rule, because that rule stood as an obstacle "to the accomplishment and execution of the full purposes and objectives of Congress."

So the plaintiffs' ability to sue in state court turned on whether the contract's reference to "law of your state" meant the Discover Bank rule absent preemption, or the Discover Bank ruled as preempted under Concepcion. If the former, then the contract provision would have made the entire arbitration clause unenforceable, and the plaintiffs could have pursued their claims in court. If the latter, then the contract provision would have left the arbitration clause in place, and forced the courts to dismiss the plaintiffs' claim (and go to arbitration instead).

The Court ruled that the latter interpretation was the better one. In other words, the Court said that "law of your state" meant valid California law--that is, the Discover Bank rule as preempted by the FAA under Concepcion--which did not render the class-arbitration waiver unenforceable. As a result, the arbitration clause in the contract stayed in place, and the plaintiffs' court case will be dismissed. (Justice Breyer wrote the opinion, joined by the Court's conservatives (minus Justice Thomas) and Justice Kagan. Justices Breyer wrote the dissent, and Justice Kagan joined him, in Concepcion.)

Justice Ginsburg dissented, joined by Justice Sotomayor. She wrote that "law of your state" should be interpreted to mean the Discover Bank rule, as the parties intended and expected at the time of the contract (because the Court had not then issued Concepcion). Justice Thomas dissented separately, arguing that the FAA has no application to state court proceedings.

The ruling adds yet more authority to FAA preemption of consumer mandatory arbitration clauses and thus deals a blow to consumer-plaintiffs who seek to sue corporations in court. (Arbitration often favors the corporation.) It tilts the scales (again) toward the corporation, and away from the consumer.

But at the same time, the ruling is strong on federal supremacy, including federal civil rights. Justice Breyer included powerful language reinforcing the supremacy of federal law and the constitutional requirement of state court judges to enforce federal law, explicitly mentioning federal civil rights law.

December 15, 2015 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Tuesday, December 1, 2015

Davis on Shelby County's Right Against a Remedy

The right-to-a-remedy is a standard in our constitutional songbook, going back to Marbury v. Madison, even before. But what about rights against a remedy? While we might not think about such things often, they're there. And the Court in Shelby County elevated one of them to a higher level, with potentially devastating consequences to our system of constitutional remedies against the states.

So argues Seth Davis (UC Irvine) in his Louisiana Law Review piece, Equal Sovereignty as a Right Against a Remedy.

Davis argues that the Court's newfangled "equal sovereignty" principle that contributed in Shelby County to the demise of Section 4 of the VRA (the coverage formula for preclearance) is a right against a remedy--but one of a different sort altogether. Davis says that "equal sovereignty" stands apart from other rights-against-remedies, because the Court neglected to consider any countervailing interests or factors, or whether there are other ways to respect "equal sovereignty"--in short, that the Court used "equal sovereignty" as a trump card on the right to a remedy (in Section 5 preclearance). Davis explains:

Rights against remedies are usually shaped by considered judgments about the whole remedial scheme. Due process, for instance, limited remedies that might "intimidate" regulated parties from seeking judicial review. [See Ex Parte Young.] . . . Equal sovereignty imposes a different kind of right, it appears. The Shelby County majority simply did not address Justice Ginsburg's argument that a bailout process adequately protected a state's equal sovereignty.

Thus, the Court treated Shelby County more like a third party claiming an equal protection right against reverse discrimination than as a recidivist jurisdiction with a history of voting wrongs. . . .

At a minimum, this newfound equal sovereignty right against remedies is unusual and troubling. Equal sovereignty requires the Court to strike down a constitutional remedy without considering whether that remedy is necessary to redress constitutional violations.

The result: "equal sovereignty" as a right-against-remedies "has the potential to undercut the system of constitutional remedies against states.

December 1, 2015 in Elections and Voting, Federalism, News, Scholarship | Permalink | Comments (0)