Friday, June 6, 2014

Wisconsin Federal Judge Declares Same Sex Marriage Ban Unconstitutional

Joining the federal judges who have declared unconstitutional their respective state laws banning same-sex marriage, Judge Barbara Crabb issued an 88 page opinion and order in Wolf v. Walker ruling that Art. XIII, § 13 of the Wisconsin Constitution prohibiting same-sex marriage "violates plaintiffs’ fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the United States Constitution" and that "any Wisconsin statutory provisions, including those in Wisconsin Statutes chapter 765, that limit marriages to a 'husband' and a 'wife,' are unconstitutional as applied to same-sex couples."

640px-EB9_WisconsinWhile Judge Crabb does not issue a stay, the opinion is not effective immediately.  Instead, the plaintiffs have until June 16 to submit a proposed injunction, the defendants have a week to respond, and the Judge will consider the stay at that time - - - adding a specific allowance of the parties to address the application for a stay in light of the United States Supreme Court's refusal to grant a stay - - - just two days ago - - - in Geiger v. Kitzhaber.

Crabb's opinion is a scholarly treatment that seriously engages with seemingly all of the arguments raised by the state, the plaintiffs, and various amici.  It echoes other judges who have reached similar results in relying upon Justice Scalia's dissenting opinions to support its conclusions.  Judge Crabb also interestingly uses work by Maggie Gallagher, one of the founders of the anti-same-sex marriage group National Organizer for Marriage as a supporting citation for the importance of marriage as "essential to the pursuit of happiness."  The range of her citations is impressive and although the opinion certainly has rhetorical flourishes, it is measured and substantive.

Her statement that marriage is a "fundamental right" is more nuanced in the conclusion to the due process analysis in opinion, which concludes:

that Wisconsin’s marriage amendment and the Wisconsin statutes defining marriage as requiring a “husband” and a “wife” significantly interfere with plaintiffs’ right to marry, so the laws must be supported by “sufficiently important state interests” that are “closely tailored to effectuate only those interests,” Zablocki [v. Redhail]  434 U.S. at 388, in order to survive constitutional scrutiny.

Regarding the level of scrutiny under the Equal Protection Clause, Judge Crabb finds that Supreme Court precedent - - - including Windsor - - - is not determinative and that Seventh Circuit precedent is similarly not determinative.  The opinion therefore engages in an analysis of the classification under four factors: history of discrimination; ability to contribute to society the same as others; immutability; and political powerlessness.  (Interestingly, Judge Crabb does not cite to Carolene Products).  She ultimately concludes that heightened scrutiny (intermediate scrutiny) is appropriate, although she does "hedge her bets" a bit, writing that

regardless whether I apply strict scrutiny, intermediate scrutiny or some “more searching” form of rational basis review under the equal protection clause, I conclude that the marriage amendment and related statutes cannot survive constitutional review.

The opinion then seriously considers the by-now familiar asserted interests: tradition, procreation, optimal child-rearing, protecting the institution of marriage, proceeding with caution, and the less-oft explicit interest of "slippery slope."  Not surprisingly, she finds none of them support the same-sex marriage ban.

Judge Crabb's opinion acknowledges the opinion's place in the current terrain of post-Windsor decisions.  Not only does she address the recent cases, she also considers the social climate, with reference to one of the circuit judges who might well hear the case on appeal:

In light of Windsor and the many decisions that have invalidated restrictions on same-sex marriage since Windsor, it appears that courts are moving toward a consensus that it is time to embrace full legal equality for gay and lesbian citizens. Perhaps it is no coincidence that these decisions are coming at a time when public opinion is moving quickly in the direction of support for same-sex marriage. Compare Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should Decide? 95 Mich. L. Rev. 1578, 1585 (1997) (“Public opinion may change . . . but at present it is too firmly against same-sex marriage for the courts to act.”), with Richard A. Posner, “Homosexual Marriage—Posner,” The Becker-Posner Blog (May 13, 2012) (“[T]he only remaining basis for opposition to homosexual marriage . . . is religious. . . . But whatever the [religious objections are], the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims.”).

This case is most likely going to the Seventh Circuit - - - and it or one of its sister-opinions - - - is most likely headed to the Supreme Court.

June 6, 2014 in Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, June 5, 2014

United States Supreme Court Denies Stay of Oregon Same-Sex Marriage Ruling

Without dissent or opinion, the United States Supreme Court denied the application of stay in National Organization for Marriage v. Geiger.  The application was made to Justice Kennedy (as Circuit Justice) and "by him referred to the Court." 

The National Organization for Marriage (NOM) was not a party to the orginal case, Geiger v. Kitzhaber in which Oregon District Judge Michael McShane declared unconstitutional the state’s same-sex marriage prohibition in Article 15 of the state constitution, as we discussed here.

Recall that Oregon conceded that the state law was unconstitutional; hence the application by NOM.  However, while Judge McShane did not analyze defendant standing or Article III "case and controversy" in Geiger, NOM's application for a stay in Geiger raises even more serious Article III issues after Hollingsworth v. Perry.

June 5, 2014 in Courts and Judging, Current Affairs, Family, Federalism, Fourteenth Amendment, Sexual Orientation, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, June 2, 2014

Carol Anne Bond Prevails in United States Supreme Court: Court Avoids Treaty Power Ruling

On her second trip to the United States Supreme Court, Carol Anne Bond prevailed again.

Recall that Carol Anne Bond was convicted of a crime in violation of the Chemical Weapons Implementation Act, 18 U.S.C. § 229(a), passed to implement a treaty , the Chemical Weapons Convention. But the fact that she is not a "terrorist," but rather a "vengeful" participant in a "love triangle" has caused much consternation.  While the international arms-control agreement prohibits nation-states from producing, stockpiling, or using chemical weapons, Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband.   Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.

Recall that in 2011, the Court unanimously held that Bond could raise a Tenth Amendment claim in her prosecution, reversing the Third Circuit. On remand, the Third Circuit rejected Bond's argument to  "set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress's ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution."

Today's opinion in Bond v. United States again reverses the Third Circuit.  The focus in oral argument  was on the Treaty power and whether a treaty can alter constitutional structures, namely federalism.  And while today's decision is unanimous, there are multiple concurring opinions.

The opinion for the Court, authored by Chief Justice Roberts, and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, is a relatively brief 21 pages and notes that the Bond's case is "unusual" and thus the "analysis is appropriately limited."  For the Court,

the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise.

Essentially, the Court practices constitutional avoidance by construing the statute narrowly; there is no need to confront Holland v. Missouri's holding regarding the constitutional parameters of Congress's treaty power. 

Indeed, the Court only mentions Holland in its discussion of the Third Circuit's holding and Bond's arguments; it notes that notwithstanding that "debate" there is a "well-established principle" of constitutional avoidance and includes a citation to Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). Because "Bond argues that section 229 does not cover her conduct" it considers "that argument first," and finds it decides the issue. 

In a nutshell, the Court concludes that the federal prosecutors exceeded the power the statute gave them - - - and thus there is no need to decide whether Congress exceeded the power the Constitution's treaty and necessary and proper powers gave it.

863px-CWC_Participation.svg
Nations in green are signatories to
Chemical Weapons Convention via

Justice Scalia, concurring and joined by Thomas, would conclude that the statute clearly covers Bond's Act and therefore is unconstitutional.  Justice Thomas writes a separate concurrence, joined by Scalia and in part by Alito, writes separately to "suggest that the Treaty Power is itself a limited federal power."  And in a very brief opinion, Alito argues that the "insofar as the Convention may be read to obligate the United States to enact domestic legislation criminalizing conduct of the sort at issue in this case, which typically is the sort of conduct regulated by the States, the Convention exceeds the scope of the treaty power" and thus the statute "lies outside Congress’ reach unless supported by some other power enumerated in the Constitution."

So, while the opinion is "unanimous," the three Justices considered to be the most conservative and perhaps most hostile to international law, would have limited Congress' power to implement treaties made pursuant to Article II §2 allowing the executive to "make Treaties, provided two thirds of the Senators present concur."

And for ConLawProfs, it demonstrates the relevance of the "Ashwander doctrine" as a part of constitutional law courses.

June 2, 2014 in Cases and Case Materials, Congressional Authority, Criminal Procedure, Executive Authority, Federalism, International, Interpretation, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 27, 2014

State Cannot Sue Tribe for Off-Reservation Gaming

The Supreme Court ruled today in Michigan v. Bay Mills Indian Community that a Native American Indian Tribe is immune from a suit by the State of Michigan for off-reservation gaming.  Our oral argument preview is here.

The 5-4 ruling was an unusual split: Justice Kagan wrote for the majority, which included Chief Justice Roberts and Justices Kennedy, Breyer, and Sotomayor.  Justice Sotomayor filed a separate concurrence.  Justice Thomas wrote a dissent, joined by Justices Scalia, Ginsburg, and Alito.  Justice Scalia filed a separate dissent.

The Court held that tribal sovereign immunity bars Michigan's suit against the Bay Mills Indian Community for opening a casino outside its tribal lands.  The Court ruled that Congress did not abrogate immunity, and the Tribe did not waive it, and that there's no good reason to revisit prior decisions holding that tribes have immunity even when a suit arises from off-reservation commercial activity.

May 27, 2014 in Cases and Case Materials, Federalism, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 22, 2014

Oral Arguments in Susan B. Anthony List v. Driehaus on Campaign Lies

The Court heard oral arguments today in Susan B. Anthony List v. Driehaus, a challenge to an Ohio election law prohibiting false statements.  As we explained when the Court granted certiorari in January, the case centers Article III.  The Sixth Circuit determined that the case was not ripe because although Driehaus had filed a complaint with the Ohio Elections Commission about an advertisement from Susan B. Anthony List because it could not show "an imminent threat of prosecution at the hands of any defendant" and thus could not "show a likelihood of harm to establish that its challenge is ripe for review."  It could also not show its speech was chilled; indeed representatives from the organization stated they would double-down.

580px-Seal_of_the_Ohio_Elections_Commission.svgThis is not to say that the First Amendment was entirely absent from today's arguments.  Arguing for Susan B. Anthony List, an anti-abortion organization,  Michael Carvin referred to the Ohio Election Commission as a "ministry of truth," a characterization later echoed by Justice Scalia.  During Eric Murphy’s argument, on behalf of the State of Ohio, there were references to United States v. Alvarez in which the Court found the “Stolen Valor” statute unconstitutional, with Justice Alito (who first mentioned the case) as well as Justices Scalia and Sotomayor participating in that discussion.

But Article III concerns, the subject of the grant of certiorari, dominated.  But which Article III concerns specifically?  As Justice Ginsburg asked:  "Do you think this is a matter of standing or ripeness?"  Michael Carvin's reply deflects the doctrinal distinctions and seeks to go to the heart of his argument:

In all candor, Justice Ginsburg, I can't figure out the difference between standing and ripeness in this context.  No question that we are being subject to something. I think the question is whether or not the threat is sufficiently immediate.

 Analogies abounded.  Justice Sotomayor asked why the injury in this case wasn't as "speculative" as in Clapper v. Amnesty International USA decided in early 2013 in which the Court denied standing to Amnesty International to challege domestic surveillance under FISA?  On the other hand, the challengers in Holder v. Humanitarian Law Project did have standing, based on a credible threat of prosecution" based upon 150 prior prosecutions.  But, as the Deputy Solicitor General noted in answer to a query from Chief Justice Roberts and quoting from Ohio's brief, under the Ohio statute between 2001 and 2010 there were "a little bit over 500" proceedings based on the state false statements law.

The context of an election was discussed at several junctures.  Another election cycle is approaching and election cycles themselves are short periods of intense action and when they conclude the issues can be moot. 

Despite the references to Younger v. Harris, federalism was more anemic than robust.  The notion that the state supreme court should be given an opportunity to construe the false statement law provoked laughter, with Chief Justice Roberts remark "Well, that will speed things up" as a catalyst. 

If the oral argument is any indication, it seems that the federal courts will have a chance to consider the merits of the First Amendment challenge to the Ohio statute.

April 22, 2014 in Federalism, First Amendment, Oral Argument Analysis, Reproductive Rights, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2014

Federal District Judge Finds Massachusetts Ban of Zohydro ER Unconstitutional

In a very brief order in Zogenix v. Patrick,  federal district judge Rya Zobel enjoined the Massachusetts Emergency Order prohibiting prescriptions of "hydrocodone bitartrate product in hydrocodone only extended release formulation," i.e., the controversial opiate Zohydro ER.   

Zohydro-12-10-12

Judge Zobel wrote:

The FDA endorsed Zohydro ER’s safety and effectiveness when it approved the drug. When the Commonwealth interposed its own conclusion about Zohydro ER’s safety and effectiveness by virtue of DPH’s emergency order, did it obstruct the FDA’s Congressionally-given charge?

I conclude that it did. The FDA has the authority to approve for sale to the public a range of safe and effective prescription drugs—here, opioid analgesics. If the Commonwealth were able to countermand the FDA’s determinations and substitute its own requirements, it would undermine the FDA’s ability to make drugs available to promote and protect the public health.

Thus, the judge found that it was preempted.  Judge Zobel issued a preliminary injunction prohibiting the state from enforcing its emergency order, although it stayed its injunction until April 22, 2014.

Does this mean that no state can further regulate any FDA approved drug?  Even in the contraception area?

[image via]

 

 

April 15, 2014 in Federalism, Medical Decisions, Opinion Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

State Constitutional Paramount Allegiance

Matt Ford writes over at The Atlantic that there's an irony in rancher Cliven Bundy's land claim against the federal Bureau of Land Management, now brewing in Nevada.  That's because the very state constitution that Bundy so forcefully defends (in the spirit of states' rights, state sovereignty, and the like) contains a "paramount allegiance" clause, enshrining federal supremacy right there in the document.  Here it is, from Article I, Section 2, in the Declaration of Rights:

All political power is inherent in the people.  Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it.  But the Paramount Allegiance of every citizens is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States.  The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existence, and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.

Ford explains that the clause originated in Nevada's first constitutional convention in 1863, and that state constitutional framers, overwhelmingly unionists, retained it in 1864. 

Nevada isn't the only state with a Paramount Allegiance Clause.  As Ford explains, Reconstruction-era state constitutions throughout the South had one.  While most were dropped in subsequent revisions, some states, like Mississippi and North Carolina, still have it.

April 15, 2014 in Comparative Constitutionalism, Federalism, News, State Constitutional Law | Permalink | Comments (2) | TrackBack (0)

Sunday, April 6, 2014

Sunday Dress: Kort on Revitalizing Tinker

In her article "An Imminent Substantial Disruption: Towards a Uniform Standard for Balancing the Rights of Students to Speak and the Rights of Administrators to Discipline" (forthcoming in Dartmouth Law Journal; available in draft on ssrn), Allison Kort (pictured) revisits the problems and issues with the landmark 1969 First Amendment case of Tinker v. Des Moines Independent Community School District.

Kort

Kort argues that courts "frequently make an end run around Tinker by deferring to the school board on the “reasonableness” of the school’s action, or deciding these cases on the basis of the speech’s content," even as neither "students nor school officials enjoy clear awareness of students’ rights to free speech and expression, and students are subject to personal opinions of the school boards." 

Certainly Kort's contention is demonstrated by cases such as B.H. v. Easton Area School District (the "I heart boobies bracelet" case) in which a divided Third Circuit en banc held the students had First Amendment rights and the United States Supreme Court denied certiorari.  It's also illustrated by the Confederate flag wear cases, with the United States Supreme Court likewise recently denying certiorari. And Mary Beth Tinker, who is "on tour" encouraging students to exercise their First Amendment rights would undoubtedly agree that there needs to be more awareness.

Kort's solution is a revitalization of Tinker, so that courts actually apply Tinker (rather than its progeny - - - Fraser, Hazelwood, and Morse - - - that "chip away" at Tinker) and to apply the "substantial disruption" standard to mean a "imminent danger that a compelling state interest will be violated." 

While not all school speech cases involve attire and grooming regulations, a substantial portion do.  Kort's article will therefore be of special interest to advocates and scholars working in the continuing and contentious field of student dress codes and "dressing constitutionally."

April 6, 2014 in Federalism, First Amendment, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 1, 2014

Ninth Circuit on the Equal Protection Rights of Immigrants in Hawai'i's Health Program

In a divided opinion in Korab v. Fink, a Ninth Circuit panel upheld the constitutionality of Hawai'i's health benefits for a certain class of "nonimmigrant aliens" against an equal protection challenge.  The court reversed the preliminary injunction entered by the district judge.

There are several layers of complexity in the case.  There is the immigration scheme, including a particular one involving specific nations; the health benefits schemes of both the federal government and the state; and the equal protection doctrine applicable to immigrant status fluctuating depending upon whether the government regulation is federal or state.

Judge Margaret McKeown's relatively brief majority opinion does an excellent job of unweaving and weaving these various strands of complexities in 22 pages.   As she explains, in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Congress classified "aliens" into three categories for the purpose of federal benefits, including Medicaid: eligible aliens, ineligible aliens, and a third category which allowed state option.  The "aliens" at issue are citizens of the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau who, under the Compact of Free Association (“COFA”) with the United States, may enter the United States and establish residence as a “nonimmigrant.  The "COFA aliens" are in the third category of state option.  At one point, Hawai'i included coverage for the COFA "nonimmigrants," but with the advent of Basic Health Hawai'i, its 2010 program, the COFA "nonimmigrants" were excluded.  It is the COFA "nonimmigrants" who challenge their exclusion from Basic Health Hawai'i on the basis of equal protection.

800px-1883_U.S.G.S._Map_of_the_Hawaiian_Islands_-_Geographicus_-_Hawaii2-USGS-1883
Given the federal and state interrelationships, the question of the level of scrutiny that should apply is pertinent.  As Judge McKeown explains, "states must generally treat lawfully present aliens the same as citizens, and state classifications based on alienage are subject to strict scrutiny review."  In contrast, she states, "federal statutes regulating alien classifications are subject to the easier-to-satisfy rational-basis review."  What standard should apply to a "hybrid case" such as Basic Health Hawai‘i, in which a state is following a federal direction?  Judge McKeown's majority concludes that rational-basis review applies to Basic Health Hawai'i "because Hawai‘i is merely following the federal direction set forth by Congress under the Welfare Reform Act."

Judge Bybee's concurring opinion, slightly longer than the majority opinion he joined, is an extended argument against equal protection doctrine's applicability in favor of a preemption doctrine.  

Judge Richard Clifton, who was appointed to the bench from a private practice in Honolulu, argued that the higher level of scrutiny should be applied essentially because it is Hawai'i that is exercising its state power when in makes the choice. 

Hawaii songsHe does note:

I acknowledge there is something paradoxical and more than a little unfair in my conclusion that the State of Hawai‘i has discriminated against COFA Residents. The state responded to an option given to it by Congress, albeit an option that I don’t think Congress had the power to give. Hawai‘i provided full Medicaid benefits to COFA Residents for many years, entirely out of its own treasury, because the federal government declined to bear any part of that cost. Rather than terminate benefits completely in 2010, Hawai‘i offered the BHH program to COFA Residents, again from its own pocket. The right of COFA Residents to come to Hawai‘i in the first place derives from the Compacts of Free Association that were negotiated and entered into by the federal government. That a disproportionate share of COFA Residents, from Pacific island nations, come to Hawai‘i as compared to the other forty-nine states is hardly a surprise, given basic geography. The decision by the state not to keep paying the full expense of Medicaid benefits for those aliens is not really a surprise, either. In a larger sense, it is the federal government, not the State of Hawai‘i, that should be deemed responsible.

While Judge Clifton's remarks concluding his dissent focus on the paradox in his opinion, his observations also implicitly point to the paradox at the heart of the majority's decision given that the federal scheme gives the state choices - - - and it was the state that chose to exclude certain "nonimmigrants" from the South Pacific.

April 1, 2014 in Congressional Authority, Disability, Equal Protection, Federalism, Fourteenth Amendment, Interpretation, Medical Decisions, Opinion Analysis, Preemption, Spending Clause | Permalink | Comments (1) | TrackBack (0)

Saturday, March 22, 2014

Delaware Supreme Court Interprets State Constitutional "Second Amendment" Provision to Protect the Right to Firearms in Public Housing Common Areas

Responding to a certified question from the Third Circuit, the Delaware Supreme Court interpreted its state constitutional "right to bear arms" provision expansively in its opinion in Doe v. Wilmington Housing Authority.

At issue were two policies of the housing authority.  The first, the Common Area Provision,  prohibited "residents, household members, and guests from displaying or carrying a firearm or other weapon in a common area, except when the firearm or other weapon is being transported to or from a resident’s housing unit or is being used in self-defense."  The second, the Reasonable Cause Provision,  required "residents, household members, and guests to have available for inspection a copy of any permit, license, or other documentation required by state, local, or federal law for the ownership, possession, or transportation of any firearm or other weapon" if there was reasonable cause to believe there was a violation.

800px-Rifle_in_poznanThe court interpreted Article I §20 of the Delaware Constitution as inconsistent with the housing authority policies.  The constitutional provision provides: “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.” As the court noted, this was not adopted as part of the state constitution until 1987, given concerns of the original state constitutional framers because of concerns "over groups of armed men," but nevertheless "Delaware has a long history, dating back to the Revolution, of allowing responsible citizens to lawfully carry and use firearms in our state."

Importantly, the Delaware Supreme Court clearly stated that it was interpreting Article I §20 as an independent ground and did not base its opinion on the Second Amendment.  It considered its four previous cases, noting that only in one did it cite Second Amendment cases.  Interestingly, however, in three of the four cases, the court rejected the Article I §20 claim, and in one it remanded the case on the basis of the jury instructions in the criminal trial. 

Here, however, the court found that the "common areas" in public housing deserved special consideration.  Applying the "intermediate scrutiny" standard developed in its precedent, the court reasoned that even "active and retired police officers who are residents, household members, or guests are disarmed by the Common Area Provision," and that an "individual’s need for defense of self, family, and home in an apartment building is the same whether the property is owned privately or by the government."  Thus, the court concluded that

the Common Area Provision severely burdens the right by functionally disallowing armed self-defense in areas that Residents, their families, and guests may occupy as part of their living space.

As to the Reasonable Cause Provision, the court found that it was not severable from the Common Areas provision, and was therefore also unconstitutional.

The Delaware Supreme Court's unanimous opinion clearly articulates the adequate and independent state grounds of Article I §20of the state constitution, but less clearly articulates and supports its reasoning for interpreting the state constitutional provision to invalidate the public housing prohibitions of firearms. 

[image via]

March 22, 2014 in Federalism, Opinion Analysis, Second Amendment, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 19, 2014

District Judge Orders Election Commission to Include Proof of Citizenship on Federal Form

Judge Eric Melgren (D. Kansas) today ordered the federal Election Assistance Commission to add language to state-specific instructions on the federal voter registration form for Arizona and Kansas that would require voter registration applicants to show proof of citizenship.

Arizona and Kansas previously announced that they would adopt a two-tier registration system, one for state elections and one for federal elections, in response to the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona, Inc.  Recall that in that case the Court ruled that the National Voter Registration Act, which requires states to "accept and use" a uniform federal form to register voters for federal elections, preempted an Arizona law that required state officials to reject any application for registration that wasn't accompanied by proof of citizenship.  The NVRA federal form simply required applicants to aver, under penalty of perjury, that they satisfy state requirements for voter registration.  The Court said that Arizona impermissibly required more.

Arizona and Kansas announced, in response to Inter Tribal Council, that they'd simply adopt a two-tiered system.  That is, they'd continue to "accept and use" the federal form (without additional proof of citizenship) for registration for federal elections, and they'd use their own state form (with an additional requirement for documentary proof of citizenship) for state elections. 

That seemed inefficient (among other things), to say the least.

Now, Judge Melgren's ruling, if upheld, might mean that Arizona and Kansas would ditch their efforts to create the two-tiered system, because they'd get what they want on the federal form--proof of each applicant's citizenship. 

The ruling, if upheld, also invites other states to follow suit and get their own state-specific instructions on the NVRA federal form that would require additional documentary proof of citizenship.  This could create hassles for registration through the federal form, even though a primary goal of that form was to make registration simpler.  If many states did this, they could undermine the ease of registration that the NVRA was designed to promote.

The case, Kobach v. USEAC, grew out of Arizona's and Kansas's requests to the EAC to include state-specific instructions on the federal voter registration form that would require voter registration applicants in those states to show proof of citizenship.  The states' requests came on the heels of the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona, Inc. 

The Court said that the NVRA preempted Arizona's proof-of-citizenship requirement, but it also said that a state could ask the EAC to add a proof-of-citizenship requirement on the state-specific instructions that accompany the NVRA federal form.

That's exactly what Kansas and Arizona did.  The EAC declined, and the states sued, arguing that the EAC's decision violated the Administrative Procedures Act, among other things.

Judge Melgren agreed.  He ruled that the adding the state-specific instructions on the NVRA federal form (to provide proof of citizenship) could be harmonized with the NVRA (and that the NVRA didn't preempt state law on this point):

But the NVRA does not include a similar clear and manifest prohibition against a state requiring documentary proof of citizenship.  In fact, the NVRA does not address documentary proof of citizenship at all, neither allowing it nor prohibiting it.  Therefore, the Court must find that the NVRA is silent on the subject.  Because Congress has not addressed the same subject as the state law, there is no basis to determine that the NVRA has preempted Arizona or Kansas law on the subject of documentary proof of citizenship.

Moreover, Judge Melgren said that not allowing Kansas's and Arizona's requested instructions would raise serious constitutional questions--that is, whether the NVRA intrudes too much on state authority to set the qualifications of voters for state and federal elections under the Elections Clause.  Judge Melgren wrote that requiring the EAC to include the requested state-specific instructions would avoid this question.

March 19, 2014 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, News | Permalink | Comments (0) | TrackBack (0)

Sunday, March 16, 2014

Epps on the Guaranty Clause and Kerr

Garrett Epps (U. Balt.) asked last week in The Atlantic: Can the U.S. Government Declare a State Constitution "Un-Republican"?

Epps's question comes on the heels of the Tenth Circuit ruling last week in Kerr v. Hickenlooper.  The Tenth Circuit ruled that a group of elected state office-holders have standing to challenge the state constitutional Taxpayer's Bill of Rights, or TABOR, under the Guaranty Clause, and that the suit isn't a political question.  Unless and until it's appealed, the ruling means that the plaintiffs' case can go forward.

TABOR is a Colorado state constitutional provision, adopted by popular initiative in 1992, that says that no governmental unit can raise taxes or approve a new tax without a vote of the people.  State office-holders argued in Kerr that this provision violates the U.S. constitutional provision, the Guaranty Clause, that says that the federal government "shall guaranty to every State in this Union a Republican Form of Government."  The governor, defendant in the case, argued that the plaintiffs lacked standing and that the case posed a non-justiciable political question.  A three-judge panel of the Tenth Circuit disagreed.

Epps's interest goes beyond the case, however.  He argues in his piece that the Guaranty Clause poses a "puzzle" for states' righters:

That clause, like a dormant volcano, rumbled last week in a courtroom in Denver [in the Kerr case].  The sound should worry those who think state prerogatives trump those of the nation.

. . .

The sobering implication [of the Guaranty Clause] is that Congress could decide at any point that a state's constitution was not "republican," expel its members from Congress, and require its people to draft a new constitution.

It's kind of hard to square that power with the claim that the state's are "co-sovereigns" with the federal government.  It's an odd kind of "co-sovereign" that exists by grace of its "peer."

March 16, 2014 in Federalism, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 12, 2014

Florida Supreme Court Says Bar Can Deny Law License to Undocumented Immigrants

The Florida Supreme Court last week ruled that the state bar can deny a law license to undocumented immigrants.  The ruling means that FSU law school graduate Jose Godinez-Samperio, and other undocumented immigrants, cannot be admitted to the Florida bar--at least for now.

At the same time, concurring justices called on the state legislature to change Florida law to allow admission of certain unauthorized aliens, following California's recent lead.  See In re Garcia

The question came to the court by way of a certified question of the Florida Board of Bar Examiners on the application of Gordinez-Samperio.  Gordinez-Samperio came to the U.S. when he was nine years old with his parents, who overstayed their visas.  He learned English, became an Eagle Scout, was valedictorian of his high school graduating class, and attended New College of FSU.  But he's undocumented.

The court cited federal law that states that aliens are not "eligible for any State . . . public benefit," including "any . . . professional license," unless they are "qualified alien[s]," nonimmigrant aliens, or aliens who are "paroled" into the United States for less than one year.  Federal law also allows states to override this provision, but only "through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility."

The court said that there was no such state law.

It also rejected the argument that applicants who have been granted status under the deferred action program, DACA, announced by President Obama in June 2012, were not exempt from the bar on state professional licenses.  The court, quoting DACA, said that DACA is "an act of prosecutorial discretion . . . [and] [d]eferred action does not provide an individual with lawful status."

Gordinez-Samperio and other undocumented immigrants can still get bar membership, if the state legislature allows for it--as California did in the Garcia case.

 

March 12, 2014 in Cases and Case Materials, Federalism, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Monday, March 3, 2014

Court Grants Certiorari in Bearded Prisoner Religious Freedom Case

The United States Supreme Court today granted certiorari in Holt [Muhammad] v. Hobbs, later issuing a clarifying order:

The petition for a writ of certiorari is granted limited to the following question: “whether the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one—half—inch beard in accordance with his religious beliefs.”

455px-Meister_von_San_Vitale_in_Ravenna_013Recall that the Religious Land Use and Institutionalized Persons Act - - - RLUIPA - - - essentially reinstates the "strict scrutiny" standard of the pre-Smith  [Employment Div. Dep't of Human Resources v. Smith] cases to a more limited set of circumstances than Congress did with RFRA, held unconstitutional as applied to the states as exceeding §5 of the Fourteenth Amendment in City of Boerne v. Flores.   RLUIPA arguably gives prisoners more free exercise of religion protection than the general public, though in cases,  prison security often provides a sufficient compelling governmental interest that is being further by the least restrictive means and thus overcome a prisoner's religious freedom.

Many RLUIPA claims concern grooming as I discuss in Dressing Constitutionally.  For Muslim male inmates, the question of facial hair has been prominent.  While some circuits have rejected RLUIPA claims, crediting the administrative costs of special scissors necessary to not completely shave prisoners, other courts have upheld RLUIPA claims, finding that prison officials did not satisfy the compelling government standard achieved by the least restrictive means.

The Eighth Circuit's opinion in Holt v. Hobbs is typically cursory at three pages.  Here's the court's analysis:

we conclude that defendants met their burden under RLUIPA of establishing that ADC’s grooming policy was the least restrictive means of furthering a compelling penological interest, see Fegans v. Norris, 537 F.3d 897, 903 (8th Cir. 2008) (absent substantial evidence in record indicating that response of prison officials to security concerns is exaggerated, courts should ordinarily defer to their expert judgment in such matters), notwithstanding Mr. Holt’s citation to cases indicating that prisons in other jurisdictions have been able to meet their security needs while allowing inmates to maintain facial hair, see id. at 905 (although prison policies from other jurisdictions provide some evidence as to feasibility of implementing less restrictive means of achieving prison safety and security, it does not outweigh deference owed to expert judgment of prison officials who are more familiar with their own institutions).

The court's reliance on Fegans v. Norris, involving the Arkansas Department of Corrections restriction on hair length for male (but not female) inmates, is not surprising.  Fegans  is a particularly deferential decision by the Eighth Circuit - - - it almost seems as if the court applied rational basis rather than the strict scrutiny required by RLUIPA.

The Court's grant of certiorari in Holt v. Hobbs might bring some clarity to the religious freedom for prisoners in the grooming context.

[image via]

March 3, 2014 in Congressional Authority, Federalism, First Amendment, Religion, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 26, 2014

Federal Judge Declares Texas Same-Sex Marriage Ban Unconstitutional

Judge Orlando Garcia's opinion in DeLeon v. Perry  issuing a preliminary injunction against a state constitutional same-sex marriage ban because it is most likely unconstitutional under the Fourteenth Amendment today marks the sixth time in recent weeks that a federal judge has reached such a conclusion.

Indeed, Judge Garcia's opinion relies upon these previous opinions in Bostic v. Rainey  from the Eastern District of Virginia, Bourke v. Beshear from the Western District of Kentucky;  Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah, as well as upon the Supreme Court's opinion in United States v. Windsor declaring §3 of DOMA unconstitutional.

800px-1866_Johnson_Map_of_Texas_-_Geographicus_-_Texas-johnson-1866Judge Garcia's 38 page opinion begins with an extensive discussion of the parties, the statutory and state constitutional scheme in Texas barring same sex marriage, and even a discussion of the "national debate on same sex marriage beginning with the Hawai'i Supreme Court's 1993 decision in Baehr v. Lewin.   As a preliminary matter, he not only analyzes the standing issue, but also the United States Supreme Court's summary disposition in Baker v. Nelson, 409 U.S. 810 (1972), which would seem to have been rendered irrelevant by Windsor.

On the merits - - - or more properly, on the "likelihood to succeed on the merits" prong of the preliminary judgment analysis - - - Judge Garcia's analysis is well-crafted and closely reasoned. 

Regarding equal protection, his analysis of the contention that sexual orientation merits heightened scrutiny is well-done, although he ultimately concludes that it is unnecessary to apply heightened scrutiny because "Texas' ban on same-sex marriage fails even under the most deferential rational basis level of review."  He concludes that the two government interests that the State proffers as supporting the same sex marriage ban as failing rational basis review.  First, the state's desire "to increase the likelihood that a mother and a father will be in charge of childrearing" is reinterpreted simply as childrearing.  As such, while the interest may be legitimate, it is not rationally served by banning same-sex marriage.  Second, the state's desire "to encourage stable family environments for responsible procreation" is similarly not served.  Third, Judge Garcia discusses "tradition," that while it was not explicitly advanced by the State, undergirds many of the State's arguments.  Here Judge Garcia finds that the interest is not legitmate.

In his analysis of due process, Judge Garcia, like Judge Allen in Bostic, finds marriage to be a fundamental right.  Judge Garcia marshalls the Supreme Court precedent thusly:

The State does not dispute that the right to marry is one of the fundamental rights protected by the United States Constitution. Oral Arg. Tr. p. 37 (arguing Texas marriage law does not violate Plaintiffs' "fundamental" right to marry). See, e.g., Zablocki v. Redhail, 434 U.S. 374, 384 (1978) ("[D]ecisions of this Court confirm that the right to marry is of fundamental importance for all individuals."); United States v. Kras, 409 U.S. 434, 446 (1973) (concluding the Court has come to regard marriage as fundamental); Loving v. Virginia, 388 U.S. 1, 12 (1967) ( The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."); Skinner v. Okla. ex. rel. Williamson, 316 U.S. 535, 541 (1942) (noting marriage is one of the basic civil rights of man fundamental to our existence and survival); Maynard v. Hill, 125 U.S. 190, 205, 211 (1888) (characterizing marriage as "the most important relation in life" and as "the foundation of the family and society, without which there would be neither civilization nor progress.").

He thus applies strict scrutiny and the same-sex marriage ban fails.

Judge Garcia also considers the failure to recognize an out of state same-sex marriage, as required by Texas law, and subjects this to rational basis, and analogizing to Windsor, finds this also easily fails.The opinion does seemingly address a popular audience, but even here Judge Garcia grounds his rhetoric in precedent:

Today's Court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United States Constitution and Supreme Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution. Furthermore, Supreme Court precedent prohibits states from passing legislation bom out of animosity against homosexuals (Romer), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence), and prohibits the federal government from treating state-sanctioned opposite-sex marriages and same-sex marriages differently (Windsor).

Judge Garcia stayed his opinion, mindful of the stay in Herbert v. Kitchen. Thus until the Fifth Circuit hears the case - - - or another decision - - - same sex marriages will not be occurring in Texas.

[image: map of Texas circa 1866 via]

February 26, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Friday, February 14, 2014

Federal District Judge Declares Virginia's Same-Sex Marriage Ban Unconstitutional

Judge Arenda Wright Allen's opinion in Bostic v. Rainey concludes that Virginia's statutory and state constitutional provisions banning same-sex marriages or their recognition violates the Fourteenth Amendment's Due Process and Equal Protection Clauses.

Judge Allen's due process analysis begins by declaring that there "can be no serious doubt that in America the right to marry is a rigorously protected fundamental right" and she therefore subjects Virginia's marriage laws to strict scrutiny.  Given this formulation, she easily concludes that the state's proferred interests of tradition, federalism, and  "responsible procreation" coupled with "optimal child rearing" are not satisfactory.  The analysis often reverts to the language of lesser scrutiny, including this explicit statement regarding the procreation/child-rearing interest:

This rationale fails under the applicable strict scrutiny test as well as a rational-basis review. Of course the welfare of our children is a legitimate state interest. However, limiting marriage to opposite-sex couples fails to further this interest. Instead, needlessly stigmatizing and humiliating children who are being raised by the loving couples targeted by Virginia’s Marriage Laws betrays that interest.

711px-1848_Greenleaf_Map_of_Virginia_-_Geographicus_-_Virginia-greenleaf-1848Judge Allen's equal protection analysis is substantially shorter and makes the articulates the application of rational basis scrutiny even more explicit:

Virginia’s Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. . . . 

The legitimate purposes proffered by the Proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia’s citizens, to perpetuate a generally-recognized deference to the state’s will pertaining to domestic relations laws, and, finally, to endorse "responsible procreation"—share no rational link with Virginia Marriage Laws being challenged. The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.

Judge Allen's opinion may be criticized as being longer on rhetoric than on exemplary legal analysis - - - a charge similar to that leveled against Justice Kennedy's opinion for the Court in United States v. Windsor declaring §3 of DOMA unconstitutional, upon which Judge Allen rightly relies.  Judge Allen's numerous of invocations of Loving v. Virginia - - - including beginning the opinion with an extensive quote from Mildred Loving - - - have special resonance in Virginia.  Yet at times, lofty language veers toward inaccuracy, as when the opinion states that "Our Constitution declares that 'all men' are created equal."  (That's the wording of the Declaration of Independence not the Fourteenth Amendment's Equal Protection Clause).  Others may contest that there can be "no serious doubt" that marriage is a fundamental right. 

Nevertheless, Judge Allen's opinion follows on the heels of four other opinions by federal district judges reaching the same conclusion about their respective state laws and constitutional provisions:  Bourke v. Beshear from the Western District of Kentucky;  Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah (now stayed). 

Judge Allen stayed the injunction against enforcement of the Virginia same-sex marriage ban, pending resolution by the Fourth Circuit. 

But recall that the Virginia Attorney General has declared that he will not defend Virginia's same-sex marriage ban, a position that might mean that Judge Allen's opinion never reaches the Fourth Circuit as we analyzed here.

[image: 1848 map of Virginia via]

February 14, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Interpretation, Opinion Analysis, Race, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)

Monday, February 10, 2014

Michigan Supremes Uphold Medical Marijuana, Strike Local Ban

The Michigan Supreme Court last week unanimously upheld Michigan's medical marijuana law, and struck a Michigan town's ordinance that purported to apply the federal Controlled Substances Act against it, in a two-step, federal-state-local preemption ruling.  The net result: Michigan's medical marijuana law stays on the books exactly as is, and the City of Wyoming's ordinance against it is struck.  And of course: Michigan medical marijuana users could still be prosecuted by federal authorities under the Controlled Substances Act. 

The case, Ter Beek v. City of Wyoming, involved a challenge to Wyoming's ordinance that was adopted to allow city authorities to enforce the federal Controlled Substances Act (the "CSA") against Michigan's medical marijuana law.  Wyoming's ordinance read:

Uses not expressly permitted under this article are prohibited in all districts.  Uses that are contrary to federal law, state law or local ordinance are prohibited.

That last sentence would ban marijuana that violates the CSA in the city.

But a city resident challenged it as preempted by the Michigan medical marijuana law under the Michigan Constitution.  The city argued in reply that Michigan's medical marijuana law was itself preempted--by the CSA under the federal Constitution.

The court ruled first that the CSA did not preempt the Michigan medical marijuana law.  The reason is simple: nothing in the Michigan law prohibits federal enforcement of the CSA.  There's no conflict preemption and no obstacle preemption.  Moreover, the CSA "explicitly contemplates a role for the States" in regulating medical marijuana.

The court held next that the Michigan medical marijuana law did preempt Wyoming's ordinance.  Again, the reason is simple: the ordinance, by allowing enforcement of the terms of the CSA by local officials, conflicts with the Michigan law.  The Michigan Constitution says that the City's "power to adopt resolutions and ordinances relating to its municipal concerns" is "subject to the constitution and the law."  Art. 7, Sec. 22.  That means that local laws can't conflict with state laws.  And the court said that Wyoming's did.

February 10, 2014 in Cases and Case Materials, Comparative Constitutionalism, Federalism, News, Opinion Analysis, Preemption, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, January 30, 2014

Fourth Circuit Upholds Fannie and Freddie Tax Exemption

The Fourth Circuit ruled this week in Montgomery County, Maryland v. Federal National Mortgage Association that Fannie Mae and Freddie Mac enjoy statutory immunity certain state and local taxes--and that this congressionally granted immunity is not unconstitutional.

The ruling is a rejection of some of the more aggressive states'-rights theories that we've heard in other contexts.  It underscores federal supremacy, even in the area of state and local taxes.  It's not a surprising ruling, but the court's flat rejection of certain of the plaintiffs' states-rights arguments is notable.

The case arose out of Fannie's and Freddie's refusal to pay state and local transfer and recording taxes on foreclosed properties that they sought to sell.  Fannie and Freddie cited their federal statutory exemption, which exempts Fannie and Freddie generally from state and local taxes, "except that any real property of [either entity] shall be subject to State, territorial, county, municipal, or local taxation to the same extent as other real property is taxed." 

The court distinguished between property taxes (not exempt under the statute) and transfer taxes (exempt) and ruled that Fannie and Freddie were exempt under the plain language.

But that's not the interesting part.  The court also ruled that Congress had authority to grant the exemption, and that it didn't run afoul of federalism principles.

The court rejected the plaintiffs' contention that Fannie's and Freddie's property sales were local in nature, and therefore outside Congress's Commerce Clause authority.  "In this case, the overall statutory schemes establishing Fannie Mae and Freddie Mac are clearly directed at the regulation of interstate economic activity."  The court also rejected the novel contention that the sweep of congressional authority here should be judged under a strict scrutiny standard (and not traditional rational basis review), because the exemption intruded into an area of state sovereignty.  "The Counties' analogy to the Fifth and Fourteenth Amendments fails because there is not independent constitutional protection for the States' right to tax."

The court also rejected the plaintiffs' contentions that the exemption violated federalism principles.  The court said that the exemption didn't commandeer states or state officials, that it didn't violate the Tenth Amendment (because Congress acted within its Commerce Clause authority), and that Congress can exempt non-government entities like Fannie and Freddie. 

January 30, 2014 in Cases and Case Materials, Commerce Clause, Congressional Authority, Federalism, News, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Friday, January 24, 2014

Can the Virginia Attorney General (Not) Do That? Analysis of the Virginia AG's decision not to defend the state same-sex marriage ban

 The Office of the Attorney General of Virginia, representing Janet M. Rainey, in her official capacity as State Registrar of Vital Records, has filed a Notice of Change of Position (and Memorandum in Support)  in Bostick v. Rainey, a case challenging the constitutionality of Virginia's same-sex marriage ban in federal district court.  

Herring-aug2The Complaint in Bostick, filed in September 2013, challenges both the Virginia Statute § 20-45.2. prohibiting marriages between persons of the same-sex (adopted in 1975) and the constitutional amendment, Article I, §15A, prohibiting not only marriages but other forms of relationship recognition, passed by ballot initiative in 2006.

The change of the state's position by Mark Herring, the newly elected Attorney General (pictured right) may have been unexpected in some quarters, but it replicates the United States Attorney General's decision not to defend the constitutionality of the Defense of Marriage Act (DOMA) as well as California Attorney General Jerry Brown's decision not to defend the constitutionality of Proposition 8.   Recall that in the Proposition 8 trial, Perry v. Schwarzenneger, the constitutionality of Proposition 8 was defended by intervenors including protectmarriage.com, who the trial judge described as the “proponents” of Proposition 8.  When district judge Vaughn Walker ruled that Proposition 8 was unconstitutional, an appeal ensued, followed by questions about whether the "proponents" has standing to appeal.  Importantly, an attempt to obtain a writ of mandamus to mandate Governor Schwarzenegger appeal was unsuccessful.  And also importantly, the United States Supreme Court, in Hollingsworth v. Perry, decided that the "proponents" did not have standing to appeal, thus ultimately leaving the district judge's opinion valid.

The Proposition 8 litigation is thus an object lesson in the perils of the government not defending the constitutionality of the state laws at trial - - - it might insulate a district judge's finding of unconstitutionality from appeal.

On the other hand, the United States Supreme Court did find that there was standing to appeal in the Defense of Marriage case, United States v. Windsor, despite the fact that the United States was not actually defending the constitutionality of the DOMA statute.  The Court narrowly found that BLAG, the Bipartisan Legal Advisory Group of the House of Representatives who had taken up the defense of DOMA, at a substantial cost to taxpayers, had sufficient status to confer standing, or at least the case provided "sufficient adversarial presentation for the Court to decide to get to the merits."  (Recall that the Court appointed ConLawProf Vicki Jackson to brief and argue BLAG's standing).

Thus. should some parties in Virginia seek to defend the state statutory and constitutional scheme, they should seek to approximate BLAG rather than a more private proponent, even if one could find some proponent for the 1976 statute.

Barring any state laws to the contrary, the Virginia AG surely has the power to make a determination that the state action is unconstitutional and thus decline to defend it.  But it could prove a risky business when it comes to any party having standing on appeal should the district judge agree with the plaintiffs and with the state that the state scheme prohibiting same sex marriage is unconstitutional.

January 24, 2014 in Current Affairs, Due Process (Substantive), Federalism, Interpretation, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, January 23, 2014

Daily Read: Franita Tolson on the Voting Rights Act Amendment Act of 2014

As we discussed yesterday, bipartisan legislation has been introduced in Congress that would amend the Voting Rights Act and recalibrate the coverage formula for preclearance, as a response the the Court's holding in Shelby v. Holder that section 4(b) of the VRA was unconstitutional. 

Over at HuffPo today, LawProf Franita Tolson (pictured below) has a column entitled "The Importance of Tunnel Vision in Fixing the VRA's Coverage Formula."

Tolson

 

Tolson argues that while

there are some aspects of the legislation that may displease civil rights organizations, particularly the exemption of voter identification laws from coverage under the new formula, the proposal is a strong start to address the gaping hole in the preclearance regime created by the Court's decision in Shelby County.

But in some respects, she contends, the proposed legislation may go too far. 

She argues that the proposed amendments to section 3(c) of the VRA are "alarming because they place a bull's eye squarely on the back of section 3(c)" as well as section 2.  She notes that section 3(c) of the VRA is constitutional precisely "because its intentional discrimination requirement is identical to the constitutional standard for establishing violations of the Fourteenth and Fifteenth Amendments." 

She concludes that the "legislative focus should be limited to replacing the coverage formula and leaving section 3(c) alone."

Worth a read for anyone considering the proposed amendments to the VRA and the legacy of Shelby v. Holder.

January 23, 2014 in Congressional Authority, Elections and Voting, Equal Protection, Federalism, Profiles in Con Law Teaching, Race, Theory | Permalink | Comments (0) | TrackBack (0)