Thursday, January 30, 2014
The Seventh Circuit ruled this week in Annex Books, Inc. v. City of Indianapolis that the city's law requiring adult bookstores to close between midnight and 10:00 a.m. every day and all day Sunday violated the First Amendment. The ruling means that Indianapolis can't enforce its law, although it might write a new law that regulates or zones adult bookstores, short of requiring them to close.
The court took particular issue with Indianapolis's weak reason for the law: fewer armed robberies at or near adult bookstores. The court wrote that the justification isn't supported by data. And as to the secondary effects doctrine, it said the doctrine doesn't work when the secondary effects impact only the bookstores themselves and their patrons:
The secondary-effects approach endorsed by Almeda Books and Playtime Theatres permits governments to protect persons who want nothing to do with dirty books from harms created by adult businesses; the Supreme Court has not endorsed an approach under which governments can close bookstores in order to reduce crime directed against the businesses that knowingly accept the risk of being robbed, or persons who voluntarily frequent their premises.
The court also took issue with the required closure:
That the City's regulation takes the form of closure is the nub of the problem. . . . The benefits come from closure: shuttered shops can't be robbed at gunpoint, and they lack customers who could be mugged. If that sort of benefit were enough to justify closure, then a city could forbid adult bookstores altogether.
Wednesday, November 6, 2013
Update on Stop and Frisk Judge's Removal by Second Circuit: Judge Shira Scheindlin Seeks Intervention
It was not only that a panel of the Second Circuit stayed Judge Shira Scheindlin's orders in Floyd v. City of New York and in Ligon v. City of New York regarding the NYPD's implementation of stop and frisk as violative of equal protection. But the panel - - -consisting of Judges John M. Walker, Jr, José A. Cabranes, and Barrington D. Parker - - - took the unusual move of removing Judge Scheidlin from the case, as we discussed here.
Now, counsel on behalf of Judge Scheindlin, have filed a Request for Leave to File Motion to Address Order of Disqualification (here). In addition to rules of appellate procedure, the motion relies upon the First and Fifth Amendments. Specifically, the motion alleges that discussion of important legal issues by members of the judiciary is crucial to public understanding of the rule of law and is consistent with the values of the First Amendment, and that the general discussions by the judge cannot be deemed to "run afoul" of the Code of Judicial Conduct and cannot justify a sua sponte order removing her as judge.
The removal of the judge has been roundly criticized, but now the Second Circuit has been asked to respond.
Sunday, September 15, 2013
Over at the New Yorker blog, Lincoln Caplan's piece, "Justice Ginsburg and Footnote Four" analyzes Ginsburg's discussion last week at the National Constitution Center, arguing that one of her statements "deserves more attention than it has gotten."
Ginsburg stated that her dissent last term in Fisher v. University of Texas Austin, regarding judicial review of affirmative-action plans of colleges and universities, "was inspired by a 1938 ruling not mentioned in the dissent—actually, by one of its footnotes." That most famous footnote - - - footnote four - - -of United States v. Carolene Products, is for many (including Caplan) the foundation of "a coherent justification for unelected justices to overturn legal decisions of elected officials when the fairness of the Constitution, and of democracy, is at stake."
Recall that the 1938 case of Carolene Products involved a federal statute regulating the shipment of "filled milk" (skimmed milk to which nonmilk fat is added so that it may seem to be like whole milk or even cream). It may be that this case was also on Ginsburg's mind during the oral arguments of another one of last term's cases: In her questioning of Paul Clement, who represented BLAG, in United States v. Windsor about the constitutionality of DOMA, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage." As we noted at the time, Ginsburg's allusion would have special resonance for those who recalled Carolene Products.
September 15, 2013 in Affirmative Action, Courts and Judging, Fifth Amendment, Food and Drink, Fourteenth Amendment, Fundamental Rights, Interpretation, Recent Cases, Sexual Orientation, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Friday, August 9, 2013
NPR's "All Things Considered" today featured a segment on "The Raisin Outlaw of Kerman, California," none other than Marvin Horne, of Horne v. Department of Agriculture, decided by the Court in June. Recall that the Court, in a unanimous opinion, reversed the Ninth Circuit's ruling that the Hornes did not state a claim for a regulatory taking. At issue are marketing orders promulgated by the USDA (United States Department of Agriculture) under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq., that mandate that a certain percentage of a raisins be put in "reserve" each year - - - this fluctuates yearly and by controlling raisins on the market is a means of indirectly controlling prices.
As NPR phrases it, "For not agreeing to participate in behavior that in many other industries would be considered collusion, the federal government sued the Hornes for hundreds of thousands of dollars in uncollected raisins and fines." (emphasis in original).
For anyone following takings clause doctrine (or agricultural matters and food law), this is worth a listen.
Wednesday, July 17, 2013
The Electronic Frontier Foundation, on behalf of a bevy of organizations, filed suit against the NSA in the Northern District of California to stop its surveillance program and to return any information retrieved. The complaint in First Unitarian Church of Los Angeles v. NSA argues that the "Associational Tracking Program"--the surveillance program that received so much recent attention with the release of Foreign Intelligence Surveillance Court Judge Roger Vinson's ruling ordering the disclosure of domestic phone records--violates the organizations' and their members' First, Fourth, and Fifth Amendment rights.
We previously posted on EPIC's case taking a different route--a petition for a writ of mandamus directly with the Supreme Court.
Tuesday, July 16, 2013
More on the Aftermath of Windsor (DOMA) and Perry (Prop 8) decisions: California, Pennsylvania, Arkansas, North Carolina Litigation
The Court's decisions in United States v. Windsor, declaring section 3 of DOMA unconstitutional, and Perry v. Hollingsworth, holding that the "proponents" of Proposition 8 lacked standing to appeal a federal judge's declaration of Prop 8's unconstitutionality, have not settled the matter of the unconstitutionality of same-sex marriage restrictions.
In what promises to be a continuing series, here are a few highlights:
In California, the home of Proposition 8, the litigation centers on Prop 8's constitutional status given that the Supreme Court held that the proponents did not have standing to appeal the federal district judge's holding that Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause. The original injunction was stayed, and again stayed by the Ninth Circuit even as it affirmed the district judge, but after Perry, the Ninth Circuit dissolved the stay amid questions about the effect of Perry which we discussed here.
The proponents of Prop 8 have moved (back) to the state courts, filing Hollingsworth v. O'Connell on July 12 seeking a stay from the California Supreme Court. Their basic argument is that a single federal judge should not have the power to declare a law unconstitutional for the entire state and they seek a mandate forbidding county clerks from issuing same-sex marriage licenses. On July 16, the California Supreme Court declared - - - as a docket entry and without opinion - - - "The request for an immediate stay or injunctive relief is denied." It also granted the motions for counsel to proceed pro hac vice, so the case will presumably be moving forward.
In Pennsylvania, a complaint in Whitewood v. Corbett was filed July 9, as a new constitutional challenge to the state's "little DOMA" provisions passed the same year as the federal DOMA, 1996 - - - 23 Pa. Consolidated Statute §1102 (defining marriage as between one man and one woman) and 23 Pa. Consolidated Statutes §1704 (declaring one man-one woman marriage as the strong public policy of state and refusing to recognizing same-sex out of state marriages). The Complaint interestingly quotes and cites language from Windsor several times. For example:
¶10. The exclusion from marriage undermines the plaintiff couples' ability to achieve their life goals and dreams, threatens their mutual economic stability, and denies them "a dignity and status of immense import." United States v.Windsor, No.12-307, Slip Op., at 18 (U.S. June 26, 2013). Moreover, they and their children are stigmatized and relegated to a second class status by being barred from marriage. The exclusion "tells[same-sex couples and all the world- that their relationships are unworthy" of recognition. Id. at 22-23. And it "humiliates the ...children now being raised by same-sex couples" and "makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Id. at 23.
The Attorney General for Pennsylvania, Kathleen Kane, has reportedly declared she will not defend the constitutionality of the state statutes barring same-sex marriage. The Pennsylvania Governor, Tom Corbett, the named defendant and a Republican, as well as the state legislature, are presumably studying the holding regarding BLAG's standing in Windsor.
In Arkansas, the complaint in Wright v. Arkansas was filed in state court on July 2. Arkansas has both a statute and constitutional amendment DOMA (the belt and suspenders approach). The 29 page complaint does not quote or cite Windsor, but does claim that the Arkansas prohibition of same-sex marriage violates the Due Process and Equal Protection Clauses of both the state and federal constitution, as well as violating the Full Faith and Credit Clause. First reports are that the state will defend the lawsuit.
In addition to new complaints filed post-Windsor (Perry), ongoing litigation will certainly be changed. For example, the North Carolina federal court complaint in Fisher-Borne v. Smith challenging North Carolina's failure to provide so-called second-parent adoption is being amended - - - reportedly with agreement of the state - - - to include a claim challenging the state's prohibition of same-sex marriage.
While one message of Windsor and even Perry could be understood as being that marriage, same-sex or otherwise, is a matter of state law, another message of Windsor is certainly that there are constitutional problems prohibiting same-sex marriage.
With a patchwork of state laws, this is a fertile landscape for continuing litigation.
[all images Wikimedia; final image here]
July 16, 2013 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fifth Amendment, Fourteenth Amendment, Interpretation, News, Recent Cases, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 26, 2013
The Court decided both cases presenting the issue of the constitutionality of bans on same-sex marriage.
In the DOMA - - - Defense of Marriage Act - - - case, the Court's 5-4 opinion by Justice Kennedy in United States v. Windsor, argued in March, affirmed the Second Circuit's finding that section 3 of DOMA is unconstitutional.
In its relatively brief opinion (26 pages), the majority first found that BLAG, the Bipartisan Legal Advisory Group of the House of Representatives, 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 BLAG formed to defend the statute after the Obama Administration decided not to defend the constitutionality of DOMA in February, 2011 and that the Court appointed ConLawProf Vicki Jackson to brief and argue BLAG's standing. Dissenting, Justice Scalia argued that the standing and merits decisions by the Court "both spring from the same diseased root: an exalted notion of the role of this court in American democratic society," not referencing his position in yesterday's decision in Shelby County v. Holder holding a different act of Congress unconstitutional.
On the merits and holding section 3 of DOMA unconstitutional, Kennedy articulates the federalism rationales so central to the First Circuit's holding that DOMA was unconstitutional.
The opinion then reaches the equal protection issue (under the Fifth Amendment given that DOMA is a federal statute) and concludes:
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
Importantly, the decision seems to be applying rational basis review, although it does little to provide a clear analytic framework or solve problematics of rational basis review. Indeed, it introduces a notion of "careful consideration" which is certainly not strict scrutiny, but likewise eschews the intermediate scrutiny favored by the Second Circuit's decision in Windsor and seems to apply to the "animus" aspect of rational basis with "bite."
In the Proposition 8 case, Hollingsworth v. Perry, also argued in March, and also reltively brief at 17 pages, the Court's opinion by Chief Justice Roberts and joined by - - - Scalia, Ginsburg, Breyer and Kagan - - - held that there was no standing for the "proponents" to appeal and thus vacates the Ninth Circuit panel opinion that held Proposition 8 unconstitutional. The Ninth Circuit, in a careful opinion, had affirmed the opinion of Judge Vaughn Walker who presided over an extensive trial in federal district court, after which he held Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause. (Recall that Judge Walker's own sexuality became an issue in the case, but both a district judge and the Ninth Circuit rejected claims of bias). Although the case attracted much scholarly attention, many commentators believed that standing was problematic.
The Court concluded:
We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.
The dissenting Justices - - - Kennedy, Thomas, Alito, and Sotomayor - - - credited the California Supreme Court's opinion on standing (answering the certified query from the Ninth Circuit) and Kennedy's dissenting opinion noted that the initiative process made the "proponents" not mere private parties:
In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century.
The dissenters also noted the "irony" in the majority's position: "A prime purpose of justiciability is to ensure vigorous advocacy, yet the Court insists upon litigation conducted by state officials whose preference is to lose the case."
The familiar liberal/conservative split of Justices is not apparent in Perry, since the issue os resolved on standing, but dominates Windsor. Yet in both cases, sharp disagreements about the democratic process are apparent.
June 26, 2013 in Equal Protection, Family, Fifth Amendment, Fourteenth Amendment, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)
Tuesday, June 25, 2013
A sharply divided Supreme Court (5-4) today ruled in Koontz v. St. Johns River Water Management District that a government's demand for a monetary exaction from a property owner as a condition of receiving a development permit is subject to the unconstitutional conditions doctrine in Nollan v. California Coastal Comm'n and Dolan v. City of Tigard and the Takings Clause.
The ruling means that a local government cannot require a property owner to pay money in exchange for a building permit unless there is a "nexus" and "rough proportionality" between the government's demand and the effects of the proposed land use. This is an expansion of the Nollan/Dolan doctrine that creates likely heightened judicial scrutiny of local land-use regulations and fees. Although it's not clear exactly how far this expansion extends--and whether these claims, like Koontz's, would ever be successful--the ruling restricts local governments in the way they create conditions for land-use permits and is therefore a likely victory for property owners.
Nollan and Dolan say that when the government demands a property exaction in exchange for a land-use permit, there must be a "nexus" and "rough proportionality" between the exaction and the proposed land use. If there's no "nexus" and "rough proportionality," then the condition is a government taking, and, under the Takings Clause, the government owes just compensation. The cases represent a version of the unconstitutional conditions doctrine, because they're designed to protect against the government exacting unreasonable conditions in exchange for land-use permits, without paying just compensation for those unreasonable exactions, in violation of the Takings Clause. ("Nexus" and "rough proportionality" protect against government coercion of a property owner, by imposing unreasonable government exactions, unrelated to the property development.)
Those cases were relevant here, because Koontz sought to develop his land in Florida, but the District said it wouldn't grant a permit until Koontz (1) deeded to the District a conservation easement on his property or (2) hired contractors to make imrpovements to District-owned wetlands several miles away.
The Court ruled that Nollan/Dolan applied to both conditions. The Court ruled 5-4 that the Nollan/Dolan rule applied to monetary exactions (the second alternative condition), because, the Court said, monetary exactions implicate the central concern of those cases: the risk that the government might use its power in land-use permitting exact an unreasonable sum of money from a property owner that doesn't have anything to do with the proposed development. Justice Alito wrote for the Court, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas.
The dissent argued that this holding "runs roughshod over Eastern Enterprises v. Apfel" and "threatens to subject a vast array of land-use regulations, applied daily in States and localities throughout the country, to heightened constitutional scrutiny." Justice Kagan wrote the dissent, joined by Justices Ginsburg, Breyer, and Sotomayor.
(The dissent also argued that the case could be disposed of around Nollan/Dolan, because (1) "the District never demanded that Koontz give up anything (including money) as a condition for granting him a permit" and (2) "no actual taking occurred," leaving Koontz just a state-law basis for monetary damages, but the dissenters "cannot see how, and so would spare the Florida courts.")
All nine Justices agreed, however, that the Nollan/Dolan rule applied to the first alternative condition. The question here was whether that rule applied where, as here, the government demands a condition before it approves a permit (rather than denying a permit for failure to meet the condition). All nine said yes. But because the government didn't take anything--it simply declined to grant a permit until a condition was satisfied--the property owner cannot get just compensation (although he might be entitled to monetary relief under state law).
The Court remanded the case to the Florida Supreme Court for a determination whether Koontz is entitled to any monetary relief under state law. If the dissent is right, this is a futile effort.
Monday, June 10, 2013
In a relatively brief opinion in Horne v. Department of Agriculture by Justice Thomas writing for a unanimous Court, the Court reversed the Ninth Circuit's ruling that the Hornes did not state a claim for a regulatory taking.
Recall that the Hornes are involved in the raisin business and the Ninth Circuit had upheld a regulatory scheme that mandates that a certain percentage of a raisins be put in "reserve" each year - - - this fluctuates yearly and by controlling raisins on the market is a means of indirectly controlling prices.
The precise nature of the Hornes' involvement in the raisin business - - - whether they are handlers or producers - - - is important to the controversy. But, the Supreme Court held, not as important as the Ninth Circuit ruled. Instead, the Court held that
The Ninth Circuit confused petitioners’ statutory argument (i.e., “we are producers, not handlers”) with their constitutional argument (i.e., “assuming we are handlers, fining us for refusing to turn over reserve-tonnage raisins violates the Fifth Amendment”).
Thus, the Ninth Circuit should have reached the merits of the Takings Clause claim.
Moreover, the argument that the Hornes' claim was not ripe was also incorrect. They were subject to enforcement proceedings and they are free to raise their Takings Clause defense before the USDA and the courts.
Although a somewhat technical decision sounding in "jurisdiction," the Court has opened the way for a regulatory Takings Clause claim against an agricultural scheme seeking to control prices and supply.
[image of raisin via]
Friday, April 26, 2013
In an interesting advisory opinion from the Federal Election Commission (FEC), the ability of same-sex couples married under state law to make political contributions similar to opposite-sex married couples is thwarted by the Defense of Marriage Act (DOMA). Recall that the United States Supreme Court is currently considering the constitutionality of DOMA in United States v. Windsor, argued last month.
The advisory opinion explained the underlying regulatory scheme:
Notwithstanding the prohibition on contributions in the name of another, a Commission regulation governing “[c]ontributions by spouses” provides that “limitations on contributions . . . shall apply separately to contributions made by each spouse even if only one spouse has income.” 11 C.F.R. 110.1(i). Thus, under Section 110.1(i), a spouse with no separate income may make a contribution in his or her own name “through the checking account of the other spouse.”
It concluded that "so long as the relevant provisions of DOMA remain in effect, the Committee may not apply 11 C.F.R. 110.1(i) to contributions from same-sex couples married under state law," although the Commission recognized that DOMA was currently under review.
In a separately issued concurring statement, FEC Chair Ellen Weintraub (pictured) emphasized that her "vote today was in no way intended to endorse the discriminatory, irrational burden that DOMA places on political participation by individuals in same sex."
If DOMA is not declared unconstitutional by the United States Supreme Court on the basis of equal protection, the FEC's opinion might be fertile ground on which to grow a First Amendment challenge.
[image of Ellen Weintraub via]
Monday, April 8, 2013
Greenhouse has this reminder about federalism and family law:
There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)
Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.
Substitute “marriage” for “criminal procedure” and you time-travel into last week’s argument. But you will listen in vain for the voice of Justice William O. Douglas, who brushed away concerns about what he dismissively called “this federalism” to ask: “Has any member of this court come out and said in so many terms it’s the constitutional right of a state to provide a system whereby people get unfair trials?”
As usual, Linda Greenhouse is worth a read, for ConLaw Profs and ConLaw students.
April 8, 2013 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fifth Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Oral Argument Analysis, Sexual Orientation, Sexuality, Sixth Amendment, Supreme Court (US), Theory | Permalink | Comments (2) | TrackBack (0)
Thursday, March 28, 2013
In the oral argument for United States v. Windsor challenging the constitutionality of the Defense of Marriage Act, DOMA, Chief Justice Roberts expressed skepticism that gays and lesbians were politically powerless, announcing to Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."
ConLawProf Darren Hutchinson (pictured) provides an indepth examination, context, and prescient critique of Roberts' remark in his new article, Not Without Political Power': Gays and Lesbians, Equal Protection, and the Suspect Class Doctrine, available in draft on ssrn. Hutchinson argues that the political powerlessness factor used to evaluate claims for heightened scrutiny under equal protection doctrine is "especially undertheorized and contradictory."
Hutchinson's article is a tour de force of precedent deploying rhetoric of political powerlessness. Of course, Hutchinson highlights Justice Scalia's well-known dissent in Romer v. Evans, the Colorado Amendment 2 case, noting that not only is it based on stereotypes but it "sounds exactly like a political document against gay and lesbian rights." But Hutchinson does suggest that there is indeed a role for politics, however at a much more sophisticated level. Rather than jettison any inquiry into political powerlessness as some scholars have argued, Hutchinson contends that a much more robust understanding of politics is necessary.
Ultimately, Hutchinson concludes that the present scholarly and judicial discourse
fails adequately to discuss the multiple factors that cause political vulnerability among gays and lesbians. While some gays and lesbians possess power, most of them do not. Poverty, gender, race, geography, and disability influence the ability of gays and lesbians to exercise political power.
Instead, he suggests that political science scholarship inform legal scholarship and judicial opinions, and that antisubordination legal scholarship inform wider discussions of equal protection. Certainly, Hutchinson's article should inform anyone considering political powerlessness in the context of same-sex marriage and equal protection.
March 28, 2013 in Current Affairs, Equal Protection, Family, Fifth Amendment, Fourteenth Amendment, Gender, Interpretation, Profiles in Con Law Teaching, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 27, 2013
In the second of the same-sex marriage cases, after yesterday's Proposition 8 argument, the Court heard oral argument today in United States v. Windsor, a grant of certiorari to the Second Circuit opinion holding DOMA unconstitutional and applying intermediate scrutiny to sexual orientation classifications.
Edith Windsor (pictured) argues that DOMA - - - the Defense of Marriage Act - - -violates the equal protection component of the Fifth Amendment. Recall DOMA is not being defended by the Obama Administration, but by BLAG - the Bipartisan Legal Advisory Group - - - at taxpayer expense which reportedly topped $3 million even before today's arguments.
The extended two hour session had several attorneys arguing: LawProf Vicki Jackson, Court-appointed as amicus on the standing issue; Sri Srinivasan, Deputy Solictor General (supporting Windsor on the standing issue); Paul D. Clement on behalf of BLAG; Solicitor General Donald B. Verrilli (supporting Windsor); and Roberta A. Kaplan on Behalf of Windsor.
On the standing issue:
Similar to the Proposition 8 case argued yesterday, the fact that the government is not defending the constitutionality of the law raises a quetions about the Court's power under Article III to decide the issues.
Justice Kagan asked one of the most trenchant questions regarding standing and injury, especially given the Obama Administration's stated belief that DOMA is unconstitutional:
The Government is willing to pay that $300,000, would be happy to pay that $300,000, but whether the Government is happy or sad to pay that $300,000, the Government is still paying the $300,000, which in the usual set of circumstances is the classic Article III injury. Why isn't it here?
But Jackson answered that the federal government had not asked the Court to remedy that injury and that the Article III "case or controversy" requirement is "nested in an adversarial system."Throughout the arguments on standing there was a search for the most controlling precedent - - - with Justice Roberts' asking "is there any case where all the parties agreed with the decision below and we upheld appellate jurisdiction? Any case?" The general consensus seemed to be that Windsor was distinct from the most similar case, INS v.Chadha decided in 1983. (Chadha involved the legislative veto and produced a very fractured set of opinions on the merits). Justice Scalia had some barbs to throw at the present administration, contrasting it to when he was at the Office of Legal Counsel.
On the merits:
The challenge to DOMA is under the equal protection component of the Fifth Amendment, with the Solicitor General arguing that the standard to be applied is intermediate scrutiny and Kaplan arguing that DOMA failed even rational basis scrutiny. Yet the equal protection arguments were embroiled with the federalism and Congressional power to pass DOMA; Justice Kennedy stated that the federalism and equal protection issues were "intertwined." [A good example this intertwinement occurred in the First Circuit opinion that held DOMA unconstitutional.]
For Solicitor General Verrilli, the intertwinement aspect was a cause of consternation and undercut his argument yesterday in the Proposition 8 case that even a state law denying same-sex marriage violated equal protection and that the correct standard was intermediate scrutiny as the Second Circuit held.
The consistency principle of equal protection doctrine - - - that the same standard should apply no matter what classification was benefitted or burdened - - - was also a focus, with hypotheticals about the standard should Congress decide that it would provide federal benefits to same-sex couples even if the state did not recognize their marriages. [The question of who would have standing to challenge such a law did not arise].
Justice Roberts repeatedly brought up the question of animus as part of a rationality with bite inquiry, asking at least twice whether the 84 Senators who voted for DOMA and the President [Clinton] were motivated by animus. Justice Roberts also raised the question of political powerlessness, often an inquiry in determining the level of equal protection scrutiny. Roberts echoed an opinion expressed by Justice Scalia in earlier cases that sexual minorities were anything but politically powerless when he told Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."
Justice Ginsburg probably uttered the most memorable quote of the day's arguments. In her questioning of Paul Clement, who represented BLAG, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage." Her remark would be even more noteworthy for people who recall that the scrutiny standard is often traced to the famous footnote 4 in Carolene Products, a case about - - - milk.
Thursday, March 21, 2013
Daily Read: US v. Windsor, the DOMA Case, Amicus Brief Cato Institute and Constitutional Accountability Center
Fourth in a Series: Guest Post by Allison Reddy, City University of New York (CUNY) School of Law, class of 2014
The brief of amici curiae of Cato Institute and Constitutional Accountability Center supports the position of Edith Windsor and argues for affirming the Second Circuit opinion. The Cato Institute is a think tank dedicated to public policy research furthering “the principles of individual liberty, limited government, free markets and peace.” The challenge to DOMA is consistent with CATO's philosophy of limited governmental interference in issues of personal freedom, especially on the part of the federal government. The Constitutional Accountability Center, also a think tank, is dedicated to "fulfilling the progressive promise of our Constitution’s text and history." While the two organizations might differ on controversial cases such as Citizens United, here the organizations agree that DOMA should be held unconstitutional.
Interestingly, the brief does not use the umbrella argument technique and instead jumps right into the arguments, first discussing the equal protection guarantee embodied in the Fifth Amendment. According to their argument, the Constitution protects individuals, not groups, from “lawless action by the government.” The amicus continues to quote Justice Kennedy’s concurring opinion in JEB v. Alabama, which focused on the fact that individuality rises above association with a particular class. Therefore, any law designed to make individuals inferior under the law because of membership in a class is inherently odious. The argument progresses to discuss the plain meaning of the equal protection clause, which requires “equality under the law and equality of rights for all persons.” Citing the Civil Rights Cases, Yick Wo, and Justice Harlan’s dissent in Plessy v. Ferguson, the brief makes a forceful case for the prohibition of class legislation. Framing DOMA as discrimination against gays and lesbians and denial of their right to “ordinary civic life in a free society” (Romer), the principles and case law undergirding equal protection require that DOMA be overturned.
The brief discusses the history of heightened scrutiny, both strict and intermediate. It supports the Second Circuit’s conclusion that intermediate scrutiny is appropriate. It argues, however, that the Court need not even reach a heightened scrutiny analysis, because DOMA fails even the most deferential rational basis review. However, without acknowledging the perhaps more “searching” scrutiny these cases apply, the brief uses Romer, Moreno, and Cleburne to support its conclusion. It does note that rational basis review, although deferential, “has never entailed judicial abdication in the face of arbitrary, invidious discrimination inconsistent with the equal protection guarantee,” citing Nat’l Fed’n of Independent Business v. Sebelius in support of this proposition. Accordingly, the Court should not abdicate its responsibility to protect gays and lesbians from DOMA’s discriminatory effects.
The brief further argues that because DOMA discriminates against gays in lesbians in almost every aspect of their lives, it violates the basic guarantee of equal protection under the law. DOMA was not a rational solution to a legitimate federal problem because it was obviously enacted in the spirit of animosity towards gays and lesbians, aiming to make them unequal to everyone else. Quoting the legislative history, the brief points out that “federal legislators sought to ‘express their disapprobation through the law,’ 142 Cong. Rec. 17,089 (1996), asserting that same-sex couples were ‘immoral, depraved,’ ‘unnatural,’ ‘based on perversion,’ and ‘an attack on God’s principles.’ Id. at 16,972, 17,074, 17, 082.” The brief goes on to eviscerate the rational bases proffered by BLAG in much the same manner as the Southern District, First Circuit, and Second Circuit.
This amicus brief reads much more forcefully than the Government’s brief. The way that this amicus brief essentially frames Romer, Cleburne, and Moreno as ordinary rational basis cases mirrors BLAG’s framing of those cases—except to support the opposite argument. At first blush, not acknowledging the more “searching” standard in these cases seemed glaring; however, this was obviously an intentional choice to construe these cases as minimally scrutinizing to support a finding that DOMA would fail even the most permissive review.
Moreover, by invoking the plain meaning of equal protection, this brief dispensed with the legal formalism. It argued that couching the arguments over DOMA in the language of federalism is a disingenuous approach to the issue and urges the Court reject BLAG's construction and confront DOMA in a forthright manner.
[posted and edited by RR]
Wednesday, March 20, 2013
Third in a Series: Guest Post by Versely Rosales, City University of New York (CUNY) School of Law, class of 2014
The brief submitted by National Association of Evangelicals; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; The Church of Jesus Christ of Latter-Day Saints; The Lutheran Church-Missouri Synod; The Romanian-American Evangelical Alliance of North America; and Truth in Action Ministries supports the position of BLAG arguing for the constitutionality of DOMA.
The brief argues that rational basis review is the proper standard for evaluating legislation, like DOMA, that implicates questions of values, culture, and policy. The brief also argues that “moral and religious views voiced in support of DOMA do not detract from its validity.”
The rational basis argument:
This amicus brief first argues that rational basis governs because what is at issue in DOMA “is not a discrimination against a discrete and insular minority.” Instead, the issue is a “profound culture debate over the nature and meaning of marriage.” Further, because “homosexuals” have political power, they do not need extraordinary judicial protection from majoritarian interests. Thus, they can rely on the democratic political processes to engage in a debate over values, morals, judgments, and culture. Therefore, rational basis review is the only standard that allows for spirited democratic debate over the different visions of marriage that should prevail in the federal government. By applying anything other than rational basis, the Court would deprive the public of this debate. In particular, it would deny faith communities, who have a “long experience in these matters” and “unique perspectives,” to be heard by democratic decision makers.
Thus, the brief contends that the Second Circuit’s conclusion that Section 3 of DOMA is unconstitutional stands on a “rickety foundation.” The Second Circuit is faulted for “creat[ing] the first new protected class in 35 years,” and being contrary to every federal court of appeals that has addressed the question. Further, this amicus brief notes several other reasons why heightened scrutiny is “plainly improper in this case.” First, heightened-scrutiny jurisprudence contains a strong presumption against creating new suspect classes as courts should be very reluctant to closely scrutinize legislative choices. Secondly, the Constitution presumes that unjust discrimination will be remedied through the ordinary democratic process. Thirdly, the Supreme Court’s refusal to recognize any new suspect classes confirms the necessity of a very cautious approach into sensitive areas.
The amicus brief of these religious organizations criticizes the Second Circuit opinion for failing to recognize that rational basis review is the proper standard of review for preserving the primacy of the democratic process in cases turning on fundamental issues of public policy, culture, and morality. DOMA is argued to be within this category because it has become monumental cultural conflict between two major visions of marriage: traditional marriage which is centered on procreating and raising children; and the more recent, genderless, adult-orientated notion where procreation and childrearing are not central to marriage’s meaning. The traditional marriage concept has deep roots and provides a mechanism for coping with the reality that sex between men and women generally results in pregnancy and childbirth. And, whether proven or not, it is reasonable to accept that children born from opposite-sex married relationships will benefit by being raised by two parents within long-term relationships. In addition, lawmakers cannot and should not rely on social science scholars on the effects of sexual minorities parenting children because, in part, such opinions are inherently tentative and often laden with value-based assumptions. Thus, lawmakers should be allowed to use their judgments and own experience, which have led them to believe that traditional marriage and family structure deserve distinctive legal protections.
The amicus brief also points out while the Court has never adopted “the genderless, adult-centered definition of marriage,” it has “long endorsed the strong legislative preference for man-woman marriage as the foundation of our society.” Given this historical preference, the Court should construe DOMA as a rational preference for the tried and familiar over the untried and novel.
The moral and religious views argument:
The second main argument of this amicus brief contends “moral and religious views voiced in support of DOMA do not detract from its validity.” Congress identified “defending traditional notions of morality” as one of the four “governmental interests” for the enactment of DOMA. The brief argues that Congress recognized that the issue of marriage has moral or religious aspects for many Americans and that cannot be divorced from the practicalities. Lawmakers have the right to protect this valued moral norm, and when they do so, it should not be labeled as invalid just because it happens to coincide with the tenets of some - - -or all - - - religions. To declare DOMA void merely because it adheres to traditional moral and religious belief would fly in the face of this Court’s ruling that the Constitution does not allow the government to treat religion and those who practice or teach it as being subversive to American ideals and therefore subject them to unique disabilities. “By scrutinizing a law reflecting, in part, religious values more severely than others, courts would effectively target such beliefs or religious support for unusual burdens or penalties.”
Interestingly, the brief ultimately argues that to subject DOMA to heightened scrutiny simply because of its “affiliation with traditional morality would raise First Amendment concerns.”
Contribution of the Brief:
This amicus brief supports the position of BLAG that DOMA is unconstitutional. But although BLAG agrees that traditional marriage coincides with religious sections of the citizenry, it does not emphasize the moral aspect of DOMA in its brief.
The Government brief does not agree with the assertion that what is at issue is a cultural debate. The Government clearly argues in its brief that DOMA is based on discrimination and it affects the distribution of benefits to a sub-section of society. The Government also disagrees with the Amicus brief’s most basic contention: Homosexuals are not a discrete and insular minority deserving of heightened scrutiny.
The argument that the First Amendment is relevant is unique; it is not shared by BLAG or the Government.
[posted and edited by RR]
March 20, 2013 in Current Affairs, Equal Protection, Family, Fifth Amendment, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, March 19, 2013
Daily Read: US v. Windsor, the DOMA Case, Amicus Brief of Scholars of the Constitutional Rights of Children in Support of Windsor
Second in a Series: Guest Post by Anetta Sookhdeo, City University of New York (CUNY) School of Law, class of 2014
The brief of the Scholars of the Constitutional Rights of Children (including Professor Tanya Washington, pictured) in support of Respondent, Edith Windsor, responds to several of BLAG’s assertions that the Defense of Marriage Act (DOMA) advances the welfare of children by (1) providing a stable structure to raise unintended and unplanned offspring; (2) encouraging the rearing of children by their biological parents and (3) promoting childrearing by both a mother and a father. These goals are discredited by the Amici because they merely reflect a preference for children to be raised by opposite-sex parents.
The Amici assert that DOMA creates a classification based on children living in households headed by same-sex parents and those living in households headed by opposite-sex parents. Subsequently, children are harmed by treating these two classes differently, even though they are identically situated. To bolster this point, the Amici cite an October 2011 study that estimates about two million children make up the class of children being raised by LGBT parents. Of those, according to the United States Census, between three hundred thousand and one million children are being raised by same-sex couples. Moreover, these numbers are likely to increase as more states begin to legally recognize same-sex marriages.
Additionally, DOMA deprives children of important federal resources and protections by making households headed by same-sex parents ineligible to receive them. The Amici assert that these benefits and resources, which include the Family Medical Leave Act (FMLA), Federal Employees Health Benefits Program, Social Security payments to spouses and filing joint tax returns, are important safety features to protect children within family units. For example, the goal of the FMLA to promote stability and economic security of families is not extended to households where children are raised by same-sex parents. Whereas eligible opposite-sex married couples are eligible to take up to twelve weeks of unpaid leave to care for a sick child, spouse or parent, same-sex married couples are ineligible for this benefit. The Amici argue that children within these families being deprived of federal resources have the same need and interest in family security and stability and suffer an injury that is cumulative over the course of their lifetimes.
Furthermore, children suffer psychological harm as a result of DOMA symbolically expressing inferiority of families headed by same-sex parents. According to the Amici, the purpose and effect of DOMA is to stigmatize families with same-sex parents and, by extension, the children of those families. DOMA accomplishes this result by communicating to those children in households headed by same-sex couples that their family unit is “morally objectionable and functionally deficient.” The Amici argue that the Court has already spoken through Brown v. Board of Education and Plyler v. Doe those statutes which place a stigma on children and confer adverse psychological effects are unconstitutional.
The Amici’s second argument is that DOMA should be invalidated because it does not survive any level of scrutiny for punishing children based on moral disapproval for the conduct of their parents. The Court’s goal and history of protecting the right of children to “self-determination and to flourish fully in a society without being hampered by legal, economic and social barriers” is seen by the decisions in Levy v. Louisiana and Weber v. Atena Casualty & Surety Co. In these cases, the court decided that invidious classifications based on illegitimacy were impermissible. The Amici acknowledge that while the state may have a valid interest in promoting marriage and childbirth within marriages, the state is not permitted to exclude a group of children who have identical interests in the benefits at issue, simply because the group of children is disfavored.
In addition, the Amici argue that the outcome of Plyler indicates the Court’s view that a foundational mission of the Equal Protection Clause is “to work [for] nothing less than the abolition of all caste-based and invidious class-based legislation.” Plyler indicated that while states could disapprove of the presence of undocumented immigrants in the United States, they could not justify the imposition of disabilities on the minor children of undocumented immigrants. The Amici argue that, under the mission of the Court and past rulings, laws that discriminately determine legal, economic and social status of children are prohibited.
Lastly, the Amici argue that states may not enforce moral disapproval against children based on the relationship between their parents. The decision in Palmore v. Sidoti held that “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466 U.S. 429 (1984). Nor may the Court rely on such private biases which draw “impermissible, overbroad generalizations about different talents, capacities or preferences of males or females”. Caban v. Mohammed, 441 U.S. 380 (1979). The Amici urge the Court to find that DOMA gives effect to private bias against same-sex couples, particularly in regards to private biases about gender-role stereotypes in parenting, and should be found unconstitutional.
This brief bolsters the Government’s position by highlighting an argument that largely went unnoticed but is also at the heart of the issue being decided. The brief adds cases that were not before mentioned in the Government’s brief and provides additional avenues to argue that DOMA should be held unconstitutional. For example, the Government’s brief does not discuss Brown v. Board of Education, but here Brown is used as a primary case to advocate for invalidating a statute that adds a stigma against children of households headed by same-sex couples.
[posted and edited by RR]
Monday, March 18, 2013
Brief on the merits of the Amici Curiae United States Senators Orrin G. Hatch (pictured), Saxby Chambliss, Dan Coats, Thad Cochran, Mike Crapo, Charles Grassley, Lindsey Graham, Mitch McConnell, Richard Shelby, and Roger Wicker in support of respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives.
The Amici were all sitting United States Senators who served in the 104th Congress House or Senate and voted for passage of the Defense of Marriage Act (“DOMA”). Their interest in writing this brief was to inform the Court of the important interests that DOMA was enacted to serve. Therefore, this brief does not explore the equal protection levels of scrutiny and their applicability to DOMA or discuss every interest in enacting DOMA, as the Bipartisan Legal Advisory Group (“BLAG”) did in their brief. Rather, the The Amici’s argument focuses on and expounds specifically federal interests that were considered and explained throughout DOMA’s legislative history, but which the Amici feel were ignored, misunderstood, or summarily dismissed in the courts below.
First, the Amici contend alongside BLAG that pre-DOMA law did not recognize same-sex marriage, and that DOMA merely reaffirmed the existing federal definition. Like BLAG, the brief cites to other federal statutes and benefits describing spouses as husband and wife, and explains that at the time federal benefit statutes were enacted, no state recognized same-sex marriages. Both briefs state that DOMA was a response to the Hawaii case, Baehr v. Lewin, but the Amici go as far to describe Congress’s view that Baehr was “part of an orchestrated legal assault being waged against traditional heterosexual marriage.” [Brief, pg. 2]
Second, the Amici echoed BLAG’s asserted interest of uniformity and certainty in the application of federal law. In addition to BLAG’s claim that a federal definition of marriage is necessary to ensure that couples in different states do not have different eligibility to receive Federal benefits, the Amici also explain that DOMA was enacted to avoid state by state and statute by statute litigation over whether a couple who had married in a state that recognized same-sex marriage would be “married” if they moved to another state. The outcome of this type of litigation would largely depend on whether a state had a strong public policy against same-sex marriage, which would vary state to state. DOMA was enacted to prevent this litigation, which would have varying and inconsistent results. The Amici further contend that there is nothing suspicious or novel about Congress preferring this uniformity over deference to state law – especially when Congress is confronted by an effort to change the definition of marriage contrary to history and tradition.
Third, similarly to BLAG, the Amici reject the argument that DOMA interferes with the autonomy of states to define marriage and claim that Section 3 of DOMA protects the ability of states to preserve traditional marriage. Like BLAG, the Amici reference Section 2 of DOMA as preserving and protecting the autonomy of each individual state. In addition, the Amici claim that Section 3 of DOMA preserves the traditional definition of marriage by removing the incentive that might otherwise encourage efforts to change state law to recognize same-sex marriage. The Amici state that if recognizing same-sex marriage would allow same-sex couples to obtain federal benefits, those seeking recognition by the courts would have a powerful weapon, especially in the cases of sympathetic plaintiffs.
Finally, the Amici devote the last section of their brief to the claim that support for traditional marriage is not unconstitutional animus. Although BLAG also contends that DOMA is not motivated by animus, the Amici specifically claim that the Court’s animus jurisprudence does not support invalidating an otherwise constitutional statute based on the subjective motivations of individual legislators. Thus, where, as here, there is sufficient legislative history to indicate the law is rationally related to some legitimate governmental interest, the law cannot be invalidated by the improper motives of some legislators. Moreover, the Amici argue, there is no basis to equate support for the traditional definition of marriage with unconstitutional animus. They contend it is not irrational or bigoted to oppose the redefinition of marriage that is unknown to history or tradition.
The Amici did not present any entirely new interests or arguments in support of DOMA, but rather further explained and detailed interests that have already been discussed in the BLAG brief and in the court decisions below. It was an opportunity for the Amici to present more rationales connecting the asserted interests to DOMA but did not necessarily help in understanding BLAG’s arguments. In addition, the Amici characterized the potential for recognition of same-sex marriage as an orchestrated conspiracy to undermine their view of marriage, which may not have been appropriate for a party’s brief given its strong language.
[posted and edited by RR]
Sunday, March 17, 2013
With the oral argument in United States v. Windsor testing the constitutionality of DOMA set for March 27 (the day after the related Prop 8 case, Hollingsworth v. Perry), the amicus briefs have been piling up (and one more, from General Edwin Meese III and John Ashcroft, will apparently be added).
Recall that in United States v. Windsor, the constitutionality of DOMA is being argued by BLAG, the Bipartisan Legal Advisory Group of the U.S. House of Representatives, while Windsor (as well as the United States Government) argues that DOMA is unconstitutional. This unusual configuration raises some standing issues, but the merits briefs focus on the constitutionality of DOMA under the equal protection component of the Fifth Amendment.
In case you haven't had a chance to read each one of the amicus briefs, this week we highlight four briefs, in guest posts authored by CUNY School of Law students in Professor Andrea McArdle's "Judicial Writing Seminar." The student authors will briefly outline the arguments and then discuss what, if anything, the particular amicus brief adds to the parties' briefs.
Here's the line-up:
Meghan McLoughlin discusses the brief of Senators Orrin G. Hatch et. al in support of respondent BLAG.
Anetta Sookhdeo discusses the brief of the Scholars of the Constitutional Rights of Children in support of Windsor.
Versely Rosales discusses the brief of the National Association of Evangelicals; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; The Church of Jesus Christ of Latter-Day Saints; The Lutheran Church-Missouri Synod; The Romanian-American Evangelical Alliance of North America; and Truth in Action Ministries in support of BLAG.
Allison Reddy discusses the brief of the CATO Institute and the Constitutional Accountability Center in support of Windsor.
Monday, February 25, 2013
Writing in a "Statement" accompanying the denial of certiorari in Calhoun v. United States today, Justice Sotomayor (joined by Justice Breyer) sought to "dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark."
The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prose- cutor to move on. That is when the prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”
For Sotomayor, such prosecutorial argument threatens to violate the equal protection guarentee as well as the defendant's right to an impartial jury. She also castigated the government's original position on appeal that the prosecutor's argument was merely "impolitic," and agreed with a Fifth Circuit Judge who noted that the prosecutor's argument clearly "crossed the line."
But the unusual posture of the case - - - including issues preserved for appeal - - - meant that Sotomayor's Statement was a statement, and not a dissent from the denial of certiorari. But a strong statement it certainly was:
I hope never to see a case like this again.
Friday, February 1, 2013
As Grand Central Station celebrates its centennial today, there are many celebrations and discussions, including this excellent one from "Transportation Nation" being aired on some NPR stations, including NYC:
The case to which the report refers is Penn Central Transportation Co. v. New York City (1978), a staple of modern takings clause doctrine and theory. The owner of Grand Central - - - confusingly it was Penn Central - - - wanted relief from the NYC landmarks law which prevented the building of a large office building over Grand Central because it would destroy the historic and aesthetic features of the Grand Central. The United States Supreme Court rejected the takings argument. Writing for the Court, Justice Brennan noted that "the submission that appellants may establish a "taking" simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable." The opinion continued:
"Taking" jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action ha effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole.
Of course, the Court would vacillate from between this whole vs. fractional approach in subsequent cases, but the most recent takings cases seem to confirm Brennan's view.
For a trenchant discussion of the current state of "air rights" and takings doctrine, take a look at LawProf Troy Rule's Airspace and the Takings Clause, forthcoming in Washington University Law Review, and available in draft on ssrn.