Monday, June 26, 2017

SCOTUS Grants Certiorari in Masterpiece Cake Shop: Pitting First Amendment Against Equality

 The United States Supreme Court, after a longer than usual period, granted certiorari in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,  a case in which a cake-maker seeks the right to refuse to make a cake for a same-sex wedding, essentially asserting an exemption from Colorado's anti-discrimination law on the basis of the First Amendment's Free Exercise and Free Speech Clauses.

Recall the Colorado ALJ firmly rejected the arguments of the cakeshop owners reasoning that to accept its position would be to "allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage."   The ALJ rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of "same-sex and heterosexual couples equally is the equivalent of forcing" adherence to “an ideological point of view.” The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'" On the Free Exercise claim, the ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test.  

Pride_roma_2008_torta_nuziale_gay
A Colorado appellate court affirmed in a 66 page opinion.

Interestingly, the Court in 2014 denied certiorari to a similar case, Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer. 

The petitioner argues an intersection of doctrines including compelled speech and free exercise, arguing that the Colorado public accommodations non-discrimination law offers a "stark choice"  to those who "earn a living through artistic means: Either use your talents to create expression that conflicts with your religious beliefs about marriage, or suffer punishment under Colorado’s public accommodation law."  

 

June 26, 2017 in Federalism, First Amendment, Fourteenth Amendment, Religion, Sexual Orientation, Sexuality, Speech, Supreme Court (US) | Permalink | Comments (0)

Monday, June 19, 2017

SCOTUS Rules NC Statute Restricting Internet for Sex Offenders Violates First Amendment

 In the United States Supreme Court unanimous decision in  Packingham v. North Carolina, the Court found that the state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access commercial social networking sites, violated the First Amendment.  This outcome was predictable given the then-eight Justices' skepticism during the oral arguments in February.  Recall that Packingham was convicted of the North Carolina felony for his Facebook page on which he wrote " Thank you Jesus.  God is good" regarding a result on his parking ticket. 

The Court's majority opinion by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, is a mere 10 pages.  The Court not only stresses the breadth of the North Carolina statute, but highlights the role of the Internet in "our modern society and culture" as vital to the First Amendment:

Freedom_-NO_2_SOPA
By Fekner - Own work, CC BY-SA 3.0 via

A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. . . .

While in the past there may have been difficulty in identifying the most important places (in a spatial sense)for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular. Seven in ten American adults use at least one Internet social networking service. . . .
While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and sofar reaching that courts must be conscious that what they say today might be obsolete tomorrow.
This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

For the Court majority, even assuming the North Carolina statute was content neutral and should be analyzed under intermediate scrutiny, the statute "enacts a prohibition unprecedented in the scope of First Amendment speech it burdens."  The Court noted that the present statute applies to all social networking sites including  Facebook, LinkedIn, and Twitter, and that a state could possibly enact a more specific provision, such as prohibiting contacting a minor on social media. 

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

While Justice Alito's opinion, joined by Chief Justice Roberts and Justice Thomas, agrees with the outcome, Alito criticizes Kennedy's opinion for the Court as not being sufficiently circumspect and cautious, and for engaging in "loose rhetoric."  For Alito, the problem with the North Carolina statute is likewise its breadth: "its wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child."  Among Alito's examples are Amazon.com, the Washington Post website, and WebMD.  Yet Alito's opinion, just slightly longer than Kennedy's for the Court, found it important to argue that the entirety of the internet or even social media sites are "the 21st century equivalent of public streets and parks." In support of this, Alito argues that the internet offers an "unprecedented degree of anonymity."

Yet Alito's concurring opinion does not essentially disagree with the Court's finding that it would be possible for a state to craft a sufficiently narrow statute.  The disagreement, however, may be in the room for states to maneuver in drafting such a criminal statute. 

 

June 19, 2017 in Courts and Judging, First Amendment, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Sexuality, Supreme Court (US), Web/Tech, Weblogs | Permalink | Comments (0)

Monday, June 12, 2017

Daily Read: On the 50th Anniversary of Loving, A Look at its Portrayal in Film

 In Loving v. Virginia, decided June 12, 1967, the United States Supreme Court unanimously held that the Virginia statute criminalizing marriage between White and (most)non-White persons violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment.  The case has become an iconic one, not only because it explicitly states that the Virginia law was "obviously an endorsement of the doctrine of White Supremacy," but also because it identifies the "freedom to marry" as "one of the vital personal rights essential to the orderly pursuit of happiness by free men." 

Creighton Law Review hosted a symposium for the 50th anniversary of the case and the issue is just published.

Lovings

Among the terrific articles is one that considers the Hollywood film, released last year, as well as the previous documentary.  In the important contribution Filmic Contributions to the Long Arc of the Law: Loving and the Narrative Individualization of Systemic Injustice, Alanna Doherty argues that the film, and to a lesser extent the documentary "repackages the Lovings’ historic civil rights struggle against wider systemic oppression as a personal victory won by triumphant individuals through the power of love."  This individualization through narrative, she argues, obscures the collective and civil rights struggle that is the ground of the action the film portrays. Likewise, the "White Supremacy" of the state is attributed to a few rogue individuals. Doherty argues that such individualization is not only limited, but also accounts for the post-Loving developments in equality doctrine regarding affirmative action:

Both Loving (the film) and Fisher [v. University of Texas at Austin] (the case) present their stories of individualized racial harm at the cost of avoiding meaningful recognition of systemic injustice. While in Loving this may seem positive due to the nature of the decision, and although in Fisher the court ultimately upheld the admissions policy, harmful ideological work is still being done to our socio-legal consciousness. In Fisher, the Court set injurious legal precedent in how it evaluates affirmative action programs—under intense scrutiny and with such little deference that fewer, if any, will pass constitutional muster. And because law is an embodiment of social practices interacting with cultural conceptions in noetic space, a trend in cinematic and legal narratives to shirk responsibility for holding oppressive institutions accountable only furthers a reciprocity with cultural ideology that moves the law away from helping those most vulnerable under it.

[footnotes omitted].

And yet, even as Loving (the film) is subject to critique as being limited, sentimental, and nostalgic, Doherty ultimately contends that the film has legal relevance given our fraught political landscape:

perhaps the cultural and legal imagining that needs to be done in the noetic space of 2017 is one grounded in the inspiring recognition of triumphant small-scale love. Maybe what Loving truly contributes to such a tumultuous cultural moment is the notion that not only must we continue to commit to fights we should not have to fight, but that if we want to take care of each other even when the law fails us, we must decide to keep loving.

 


 

June 12, 2017 in Affirmative Action, Conferences, Due Process (Substantive), Equal Protection, Family, Federalism, Film, Fourteenth Amendment, Fundamental Rights, History, Race, Scholarship, Supreme Court (US) | Permalink | Comments (2)

Tuesday, May 30, 2017

Seventh Circuit Affirms Preliminary Injunction Against School District in Transgender Sex-Segregated Restroom Case

In its opinion in Whitaker v. Kenosha Unified School District, Judge Ann Williams begins for the unanimous panel including Chief Judge Diane Wood and Judge Illana Rovner, by stating that  the issue would seem to be a "simple request: to use the boys' restroom while at school," but the school district believed it was "not so simple because Ash is a transgender boy."

The Seventh Circuit decision to affirm the preliminary injunction directing the school district allowing the plaintiff, a transgender student, Ash (also known as Ashton), to use the boy's restroom rests both on Title IX and the Equal Protection Clause.  As a preliminary issue, the court found that pendent jurisdiction of the district court's order denying the school district's motion to dismiss was not appropriate.

On the likelihood to succeed on the merits of Title IX, the court considered companion Title VII doctrine in the circuit, including the doctrine of sex-stereotyping.  The fact that Congress has not added transgender status to Title IX (or Title VII) was not determinative.  Instead,

Custom-boys-restroom-school-braille-sign-se-3937Ash can demonstrate a likelihood of success on the merits of his claim because he has alleged that the School District has denied him access to the boys’ restroom because he is transgender. A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX. The School District’s policy also subjects Ash, as a transgender student, to different rules, sanctions, and treatment than non‐transgender students, in violation of Title IX. Providing a gender‐neutral alternative is not sufficient to relieve the School District from liability, as it is the policy itself which violates the Act. Further, based on the record here, these gender‐neutral alternatives were not true alternatives because of their distant location to Ash’s classrooms and the increased stigmatization they caused Ash. Rather, the School District only continued to treat Ash differently when it provided him with access to these gender‐neutral bathrooms because he was the only student given access.

And, while the School District repeatedly asserts that Ash may not “unilaterally declare” his gender, this argument misrepresents Ash’s claims and dismisses his transgender status. This is not a case where a student has merely announced that he is a different gender. Rather, Ash has a medically diagnosed and documented condition. Since his diagnosis, he has consistently lived in accordance with his gender identity. This law suit demonstrates that the decision to do so was not without cost or pain.

On the Equal Protection Clause claim, the court found that "the School District's policy cannot be stated without referencing sex" and thus the correct level of scrutiny should be the heightened one for sex classifications, citing United States v. Virginia (VMI) (1996).  The court rejected the District's asserted interest of protecting the "privacy rights" of all the other students as too abstract and conjectural to be genuine.  Moreover, the court faulted the representation at oral argument regarding the necessity for a birth certificate by first noting that this was not in the policy itself, and later returning to the issue regarding passports. Perhaps more importantly, the court also critiqued the notion of documents to prove sex designations:

Further, it is unclear that the sex marker on a birth certificate can even be used as a true proxy for an individual’s biological sex. The marker does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex. Therefore, one’s birth certificate could reflect a male sex, while the individual’s chromosomal makeup reflects another. It is also unclear what would happen if an individual is born with the external genitalia of two sexes, or genitalia that is ambiguous in nature. In those cases, it is clear that the marker on the birth certificate would not adequately account for or reflect one’s biological sex, which would have to be determined by considering more than what was listed on the paper.

 Thus, court found the School District did not satisfy the equal protection standard of United States v. Virginia. 

Recall that the district judge in Evancho v. Pine-Richland School District reached a similar conclusion on the Equal Protection Clause in February, and the constitutional claim seems to have more traction given the Title IX claim's uncertainty after the Court's dismissal and remand of  G.G. v. Glouster County School Board.

 

May 30, 2017 in Cases and Case Materials, Equal Protection, Fourteenth Amendment, Gender, Sexuality, Supreme Court (US) | Permalink | Comments (0)

Monday, May 22, 2017

SCOTUS Finds Racial Gerrymander in North Carolina Violates Equal Protection Clause

In its opinion in Cooper v. Harris, formerly McCrory v. Harris, the Court affirmed the findings of a three-judge District Court that North Carolina officials violated the Equal Protection Clause in the 2011 redistricting with regard to two districts: District 1 and District 12.

Recall that in Bethune-Hill v. Virginia State Board of Elections (argued the same day as Cooper v. Harris), the Court clarified the analysis for reviewing racial gerrymandering claims and remanded the matter back to the three judge District Court to determine 11 out of the 12 districts at issue. 

Justice Elana Kagan, writing for majority in Cooper v. Harris, provides the analytic structure for assessing challenges to racial gerrymandering under the Equal Protection Clause:

  • First, the plaintiff must prove that “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district,” quoting Miller v. Johnson (1995).  This means that the legislature "subordinated other factors," including geographic ones, partisan advantage, and "what have you" to racial considerations.
  • Second, if racial considerations predominated over others, the design of the district must withstand strict scrutiny, requiring a compelling governmental interest achieved by narrowly tailored means. 
    • A recognized compelling governmental interest is compliance with the Voting Rights Act (VRA) is a compelling governmental interest. "This Court has long assumed that one compelling interest is complying with operative provisions of the Voting Rights Act of 1965."
    • To satisfy the narrow-tailoring requirement, the state must show that it had “a strong basis in evidence” for concluding that the VRA required its action. "Or said otherwise, the State must establish that it had “good reasons” to think that it would transgress the Act if it did not draw race-based district lines," a standard which "gives States “breathing room” to adopt reasonable compliance measures that may prove, in perfect hindsight, not to have been needed."

The Court unanimously agrees that District 1 fails this standard.  The racial intent in redistricting was clear.  As to the means chosen, the Court rejected North Carolina's argument that it redesigned the district to comply with the VRA because in fact District 1 had historically been a "cross-over" district in which "members of the majority help a large enough minority to elect a candidate of its choice.  In other words, there was no 'White Bloc' operating in District 1.  The Court rejected North Carolina's argument that this could occur in the future, especially since the entire state was being redrawn.  The Court notes that the officials seemed to believe - - - incorrectly - - - that they were required to draw a majority Black district, despite any evidence of "cross-over."

Appendix 1

image: Appendix 1 to Court's opinion;
note District 1 in yellow and District 12 in orange.

 The Court divided on the constitutionality of District 12, however.  The only issue was whether or not the redistricting was racial; North Carolina did not argue it could satisfy strict scrutiny if race predominated.  Writing for the Court, Justice Kagan, joined by Justices Thomas, Ginsburg, Breyer, and Sotomayor, affirmed the findings of the three judge district court that District 12 was redrawn with reference to race.  North Carolina contended that the officials redrew the district only with reference to political affiliation (which would not violate the Equal Protection Clause), arguing that the goal was to "pack" District 12 with Democrats (and thereby render other districts more Republican).  Justice Kagan noted that the determination of whether an act was racially-motivated or politically-motivated involved a "sensitive inquiry" and that racial identification is "highly correlated" with political affiliation. But for the majority, the District Court's finding of racial predominance must be affirmed:

The evidence offered at trial, including live witness testimony subject to credibility determinations, adequately supports the conclusion that race, not politics, accounted for the district’s reconfiguration. And no error of law infected that judgment: Contrary to North Carolina’s view,the District Court had no call to dismiss this challenge just because the plaintiffs did not proffer an alternative design for District 12 as circumstantial evidence of the legislature’s intent.

Writing the dissenting opinion, Justice Alito, joined by Chief Justice Roberts and Justice Kennedy (who authored Bethune-Hill), vigorously contested the finding of racial intent.  Alito faults the majority as well as the District Court as being obtuse:  "The majority’s analysis is like Hamlet without the prince."  This bit of snark in the body of the dissent, earns a rebuke from the majority in a footnote to its statement that this district is back before the Court for the sixth time, criticizing the dissent for simply adopting North Carolina's version: "Imagine (to update the dissent’s theatrical reference) Inherit the Wind retold solely from the perspective of William Jennings Bryan, with nary a thought given to the competing viewpoint of Clarence Darrow."  In a counter footnote, Alito defends the opinion from merely accepting North Carolina's explanation. 

The alternative map argument is also a point of contention.  For the majority, it is one way of demonstrating that the redistricting officials acting on the basis of race:

If you were really sorting by political behavior instead of skin color (so the argument goes) you would have done—or, at least, could just as well have done—this.  Such would-have, could-have, and (to round out the set) should-have arguments are a familiar means of undermining a claim that an action was based on a permissible,rather than a prohibited, ground.

But, the majority emphasizes, such strategies are "hardly the only way."  For the dissent, a passage from Easley v. Cromartie, (2001) (Cromartie II), involving essentially the same district, is determinative: plaintiffs must show that the officials could have achieved their political goals in a manner with more racial balance.

Interestingly, in his brief concurring opinion, Justice Thomas references Cromartie II, in which he dissented.  Thomas contends that Cromartie II misapplied the "deferential standard for reviewing factual findings," an error which the present decision "does not repeat."

May 22, 2017 in Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Opinion Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0)

Friday, December 9, 2016

Arkansas Supreme Court Upholds Birth Certificate Denial Listing Both Same-Sex Parents

In a closely divided (4-3) opinion in Smith v. Pavan, the Arkansas Supreme Court concluded that the state statutes governing the issuance of birth certificates to children could deny same-sex parents to be listed as parents. 

Essentially, the majority opinion, authored by Associate Justice Josephine Hart found that the United States Supreme Court's 2015 decision in Obergefell v. Hodges declaring same-sex marriage bans unconstitutional was inapposite:

Obergefell did not address Arkansas’s statutory framework regarding birth certificates, either expressly or impliedly. Rather, the United States Supreme Court stated in Obergefell that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.

Justice Hart noted that the Court in Obergefell did mention birth certificates "only once" and quoted the passage, construing it being related "only" to the Court's observation that states conferred benefits on married couples, which in part demonstrated that “ the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”

Not surprisingly, dissenting justices construed this same passage as providing support for the opposite conclusion.  In a well-wrought dissent by Justice Paul Danielson, he argues:

[T]he United States Supreme Court held in Obergefell that states are not free to deny same-sex couples “the constellation of benefits that the States have linked to marriage.”  Importantly, the Court listed “birth and death certificates” specifically as one of those benefits attached to marital status.  Thus, the majority is clearly wrong in holding that Obergefell has no application here.   Indeed, one of the cases on review in Obergefell, Tanco v. Haslam, 7 F. Supp. 3d 759 (M.D. Tenn. 2014), rev’d sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), involved a same-sex married   couple   who   challenged   the   Tennessee   law   providing   that   their   child’s nonbiological parent would not be recognized as the child’s parent, which affected various legal rights that included the child’s right to Social Security survivor benefits, the nonbiological parent’s right to hospital visitation, and the nonbiological parent’s right to make medical decisions for the child.

Furthermore, one of the four principles discussed by the Court in Obergefell, for purposes of demonstrating that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples, is that the right to marry “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”    The opinion makes clear that the protection of children and the stability of the family unit was a foundation for the Court’s decision.

[citations to Obergefell omitted].

For the majority, biology was the paramount "truth" that vital records should reflect.  Moreover, this "truth" is evinced in dictionary definitions of words such as "husband" and "father," a strategy in cases that Obergefell rejected.  

HeaderBanner

 

However, the relevance of Smith v. Pavan even in Arkansas is unclear.  As Justice Rhonda Wood argued, the case may not have warranted a decision by the court:

Two key circumstances have developed since this litigation started. First, plaintiffs received relief in that the State has issued the appropriate birth certificates to them. Second, the State concedes that the relevant statutes involving determination of parentage must comply with Obergefell, including the statute governing the status of people born via artificial insemination. These developments render the majority’s decision provisional.

Moreover, there were (new) facts in dispute, despite the procedural posture of summary judgment:

First, according to the affidavit of the State Registrar of Vital Records, the Department of Health will issue birth certificates listing both same-sex parents if the hospital submits documentation reflecting that fact. However, the parties disputed at oral argument how the department’s decision is actually being applied. There are no facts in the record to resolve this dispute. Moreover, the State has now conceded that children born of artificial insemination should have both parents deemed the natural parents, whether same-sex or opposite sex, under Ark. Code Ann. § 9-10-201 (Repl. 2015) and asserts that it will place both same-sex parents on the birth certificate under the State’s new interpretation of this statute. This statute provides that “[a]ny child born to a married women by means of artificial insemination shall be deemed the legitimate natural child of the women and the women’s husband [read spouse] if the [spouse] consents in writing to the artificial insemination.” Ark. Code Ann. § 9-10-201(a). It is likely, therefore, that a same-sex couple will now have both spouses’ names listed on the original birth certificate without a court order, so long as the child was conceived via artificial insemination, the same-sex marriage occurred prior to the insemination, and the non-biological parent consented to the insemination. Appellants and appellees both conceded at oral argument this would resolve the challenge by two of the three same-sex marriage couples.

It is possible that Arkansas would revoke its concessions given the state supreme court's ruling, but if the state does, then this seems a clear case for a petition for certiorari to the United States Supreme Court.

  Front of Justice Building (5)

 

[image: Arkansas Supreme Court building]

December 9, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Opinion Analysis, Recent Cases, Reproductive Rights, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0)

Monday, December 5, 2016

Daily Read: The Equal Protection Argument for Allocation of Votes in the Electoral College

ConLawProf Lawrence Lessig has a terrific post sharing arguments that the present "winner take all" rule (in all but 2 states) for allocating electoral votes violates the Equal Protection Clause.

As an orientation for assessing the argument, Lessig trenchantly reminds us:

In 2000, Republican lawyers, desperately seeking a way to stop the recount in Florida, crafted a brilliant Equal Protection argument against the method by which the Florida courts were recounting votes. Before that election, no sane student of the Constitution would have thought that there was such a claim. When the claim was actually made, every sane lawyer (on Gore’s side at least) thought it was a sure loser. But by a vote of 7 to 2, the Supreme Court recognized the claim, and held that the Equal Protection Clause regulated how Florida could recount its votes. That conclusion led 5 justices to conclude the recount couldn’t continue. George Bush became president.

[emphasis added]. 

Lessig provides some scholarly sources and reveals he is planning a law review article on the applicability of Bush v. Gore and equal protection principles to the "winner take all" electoral college process. 

But he also shares a first take of a legal argument drafted by Jerry Sims, an Atlanta attorney.  Here's Sims's Georgia example:

In Georgia, for example, we have 16 Electors and approximately 44% of all voters cast ballots for Clinton. Yet the Clinton Voters receive no representation within the State’s Electors. They are left with no voice whatsoever in the election of the President by the Electoral College, their votes are for all practical purposes thrown away. If Georgia were electing a single candidate then a winner-take-all result would be proper, but in an election of 16 Electors, the Clinton votes are not being given equal dignity with the Trump votes. Of course the state could argue that there is a single slate of Electors is up for election. But therein lies the rub, the State is not free to disregard the one man one vote rule by arbitrarily framing the election of 16 Electors as though it is an election of a single office holder. That argument would be a pretext designed to deny any voice to the voters for the candidate not winning the plurality of the vote within the State, even though in reality multiple representatives are being selected to vote in a second election for a single candidate. This system leaves minority voters in Georgia with no voice whatsoever in the final real election. Thus, if the election is viewed by the State as a statewide election, then Electors should be allocated proportionately, in order to give every vote equal dignity and weight, thereby electing a delegation of Electors that actually represents all of the voters within the State. Under this methodology every vote counts. Proportional allocation of Electors respects the one man one vote principle while preserving the small state bias. It merely eliminates the likelihood of a President being elected who did not win the popular vote and did not win because of the small State bias embedded in the Constitution.

Sims links to a spread sheet that provides the data for other states.

The equal protection framework relies on Bush v. Gore and Reynolds v. Sims, as well as Williams v. Rhodes (1968).

It's certainly worth considering. 

600px-Electoral_map_2012-2020.svg

 

December 5, 2016 in Elections and Voting, Equal Protection, Federalism, Fourteenth Amendment, News | Permalink | Comments (0)

Wednesday, November 16, 2016

CFP: Loving v Virginia Symposium

CALL FOR SUBMISSIONS

50 YEARS OF LOVING:

SEEKING JUSTICE THROUGH LOVE AND RELATIONSHIPS

Symposium, March 23-24, 2017

Creighton School of Law, Omaha, Nebraska

The Creighton Law Review, Creighton’s 2040 Initiative, and the Werner Institute invite you to contribute to the Law Review’s June 2017 issue and/or to attend the 50 Years of Loving symposium hosted by the 2040 Initiative and the Werner Institute at the Creighton School of Law. The symposium will explore how the 1967 U.S. Supreme Court decision of Loving v. Virginia has influenced U.S society institutionally, demographically, and relationally.

Race in the United States has historically been socially constructed through interlocking cultural narratives, including law, and cultural practice, including institutions. Racism is a social system enacted and perpetuated by the interactions and relationships of individual people. Exploring the disruptive effects of the interracial “mixing” protected by Loving v. Virginia offers an opportunity to deepen understanding of systemic racism and to develop systems-based strategies for continuing the struggle for social justice. At a time when the demographics of the U.S. are shifting away from a white majority, deconstructing systemic racism is an essential project.

Loving v. Virginia, 388 U.S. 1 (1967), ended legal prohibitions against interracial marriage in the U.S. By eliminating of longstanding legal sanctions against “miscegenation,” Loving disrupted the pre-existing social system. Loving rejected racial separation and hierarchy and endorsed relationships across previously uncrossable racial lines. Since Loving, the number of interracial marriages has grown significantly: “Nearly 15 percent, or one in seven, of all new marriages in 2008 were between people of different races or ethnicities.”*

The effects of these marriages extend beyond those who are themselves married. “[M]ore than a third of all adults surveyed reported having a family member whose spouse is of a different race or ethnicity – up from less than a quarter in 2005.”* Since Loving, the proportion of the U.S. population with multiple racial heritages has grown dramatically. Moreover, the children born as a result of Loving also have disrupted the social construction of race itself, with more people self-identifying as of more than one race, biracial, multiracial, or mixed.

The Law Review seeks submissions exploring these issues – to range from reflections (up to 1000 words) and essays (approximately 2500-3000 words) to articles (no more than 7000 words, not including references and footnotes). Draft abstracts of up to one page and queries may be addressed to Research Editor Sean Nakamoto at seannakamoto@creighton.edu no later than January 15, 2017. Final submissions will be March 20, 2017. There will be an opportunity at the symposium for selected authors to discuss their submissions at the 50 Years of Loving symposium at Creighton University in March, 2017.**

Authors are also encouraged to join the moderated online discussion on the effects of the Loving decision on our society hosted by the 2040 Initiative and ADRHub at http://blogs.creighton.edu/creighton2040/50-years-of-loving-moderated-online-discussion. Selected excerpts from this discussion will also be featured in the June 2017 Creighton Law Review edition. Discussion entries should respond to the following question: From the perspective of your academic discipline or professional institution, what are the questions, issues, or tensions that have arisen out of 50 Years of Loving?

 

*john a. powell, Racing to Justice (2012)

** Contact Amanda Guidero at AmandaGuidero  AT  creighton.edu for more information on the symposium and opportunities to present your work.

November 16, 2016 in Conferences, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Race, Scholarship, Theory | Permalink | Comments (0)

Thursday, November 3, 2016

Federal Judge Rejects Republican Challenge to "Poll-Watcher" Limits

In his opinion in Republican Party of Pennsylvania v. Cortes, United States District Judge for the Eastern District of Pennsylvania Gerald Pappert has rejected the Equal Protection, Due Process, and First Amendment constitutional challenges to the state election code provision §2687(b) requiring poll watchers to be qualified electors of the county in which they serve.

The challenge argues that the code provision violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment by hampering poll watchers’ fundamental right to vote.  The "crux of this argument," as Judge Pappert states, is "that if a qualified, registered voter casts a valid ballot in one county and a fraudulent ballot is cast for a different candidate in another county, the fraudulent ballot effectively negates the valid ballot, and the qualified, registered elector’s vote is diluted."  But Judge Pappert rejected any applicability of Reynolds v. Sims's vote-dilution, noting that the vote-dilution theory here is "based on speculation that fraudulent voters may be casting ballots elsewhere in the Commonwealth and the unproven assumption that these alleged instances of voter fraud would be prevented by the affected poll watchers were they not precluded from serving at these locations."  Additionally, the challengers argued that the code provision arbitrarily distinguished between voters by county, a classification which the challengers conceded in the hearing would merit only rational basis scrutiny.  Indeed, Judge Pappert found that the entirety of the Fourteenth Amendment challenge to the code provision was subject to rational basis scrutiny given that the fundamental right to vote was not actually being burdened.

Judge Pappert also rejected the claim that Section 2687(b) infringes on the rights to free speech and association under the First Amendment by narrowing the pool of potential watchers at any polling place to the county level.  The judge noted that plaintiffs cited no authority for the proposition that poll-watching is protected by the First Amendment or that it constitutes "core political speech."  Instead, it is a state-created function and is subject to limitations by the state.  It is distinguished from petition-circulators, for example, because "poll watchers do not discuss or advocate for a political candidate or viewpoint, either explicitly or implicitly."  Instead, poll watchers, whatever their private motivations may be, are "performing a public function delegated by the state."

In addition to finding that the constitutional claims failed to satisfy the likelihood of success on the merits necessary to warrant a preliminary injunction, Judge Pappert also found the other factors for preliminary injunction lacking.  Additionally, Judge Pappert noted that the Plaintiffs "waited until eighteen days before the election to bring the case":  "There was no need for this judicial fire drill and Plaintiffs offer no reasonable explanation or justification for the harried process they created."  Moreover, should the code be enjoined, "poll watchers would be allowed to roam the Commonwealth on election day for the first time in the Election Code’s seventy-nine year history—giving the Commonwealth and county election officials all of five days’ notice to prepare for the change."

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Judge Pappert, a former Attorney General of Pennsylvania, has authored a very well-reasoned 28 page opinion likely to withstand any appeal.  And although the opinion does not mention it, election-watchers are well aware of the context of the Pennsylvania situation: As reported, Republican Presidential Candidate Donald Trump has exhorted people in the more rural portions of the state to "Go down to certain areas and watch and study make sure other people don't come in and vote five times."  Meanwhile, the Pennsylvania Democratic Party filed a complaint  against the Pennsylvania Republican Party and the Trump Campaign for voter intimidation violating the Ku Klux Klan Act.

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November 3, 2016 in Due Process (Substantive), Elections and Voting, Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0)

Tuesday, October 25, 2016

Federal Judge Enjoins Michigan's Ballot-Selfie Ban

In her order in Crookston v. Johnson, Federal District Judge Janet Neff has issued a preliminary injunction regarding Michigan's ban on the so-called ballot-selfie.  Michigan's ban is expressed in two statutes, MICH. COMP. LAWS §§ 168.579, 168.738(2), which require rejection of the ballots for "exposure" and Secretary of State rules prohibiting photographs and use of cell phones by voters in the voting station.

Not surprisingly, Judge Neff relied on the First Circuit's opinion last month in Rideout v. Gardner invalidating New Hampshire's prohibition of the ballot-selfie. Judge Neff assumed that the Michigan scheme was content-based - - - prohibiting only speech about marked ballots - - - and that even if there were compelling government interests such as coercion, the means chosen was not narrowly tailored. However, even if the Michigan scheme was deemed content-neutral, Judge Neff found that it failed intermediate scrutiny.  Again, part of the problem is that there is little if anything to show that the coercion and vote-buying is related to the ballot-selfie, and even if there were a sufficient interest, Michigan's ban is not sufficiently focused.

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Image by Andreas Schwarzkopf via

One relatively novel government interest raised by Michigan is protection of  “the rights of other voters in the exercise of their right to vote by causing intimidation, disruption, and long lines at the polls.”  This interest is not extensively discussed Judge Neff, but the specter of long lines caused by "photographers" could be important.  However, in North Carolina where early voting has begun, the lines are reportedly related to the decrease in voting places rather than to voter-conduct.

With the election imminent, Michigan may spend its time seeking review from the Sixth Circuit - - - or it may simply concede that the trend seems to be toward ballot-selfies as protected by the First Amendment.

 

October 25, 2016 in Courts and Judging, Elections and Voting, First Amendment, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0)

Wednesday, October 5, 2016

Is New York's Loitering for Prostitution Statute Unconstitutional?

In a nearly 100 page complaint filed in the federal court in D.H. v. City of New York, the plaintiffs argue that New York's Loitering for the Purpose of Engaging in a Prostitution Offense, NY Penal Code § 240.37[2], is unconstitutional on its face and as applied.  Represented by The Legal Aid Society, the central constitutional claims are that the statute is unconstitutionally vague under the due process clause and that its enforcement violates First Amendment rights to expression, Fourteenth Amendment rights to equal protection, and Fourth Amendment rights.

The intersections and distinctions between vagueness under the Due Process Clause and overbreadth under the First Amendment were elucidated by the United States Supreme Court in Holder v. Humanitarian Law Project (2010) and the complaint in D.H. might serve as a textbook example of these issues.  Essentially, the complaint alleges that the NY Penal Code section, §240.37[2] , does not provide people with adequate notice of the conduct they should avoid to preclude arrest and results in the inclusion of First Amendment protected speech, expressive conduct, and association.  Further, these lack of statutory guidelines have meant that law enforcement actions under the statute have been arbitrary as well as discriminatory on the basis of classifications involving race, ethnicity, gender, and gender identity.

In addition to the statutory arguments, plaintiffs allege that the NYPD guidelines and practices have failed to remedy the problems and have in fact exacerbated them.  One central allegation regards attire:

Furthermore, the purported guidance provided in the NYPD Patrol Guide is equally vague and otherwise flawed, thereby increasing arbitrary enforcement. For instance, the NYPD Patrol Guide instructs officers that an arrestee’s “clothing” is “pertinent” to the probable cause inquiry. At the same time, the NYPD Patrol Guide does not provide any objective criteria regarding what types of attire may or may not have probative value for purposes of establishing probable cause, thus encouraging officers to make arrests based on individual, subjective opinions regarding what clothing someone who might be “loitering for the purpose of prostitution” would wear.    In pre-printed affidavits provided by prosecutors (also referred to as supporting depositions), which prompt the arresting officer to describe “revealing” or “provocative” clothing, officers often respond by citing a wide range of innocuous attire, such as “jeans,” a “black pea coat” or a pair of leggings.

[¶ 54].  The "black pea coat" as grounds supporting a solicitation for prostitution charge attracted attention in 2013 when a judge dismissed a charge which was based on the defendant "wearing a black peacoat, skinny jeans which revealed the outline of her legs and platform shoes."  

The unconstitutional inequality in the application of NY Penal Code section, §240.37[2] is analogous to the equal protection problems in New York City's practice of stop and frisk.  Recall that a federal judge found NYC's practices violated equal protection in her opinion in Floyd v. City of New York, later stayed - - - and thereafter clarified - - - by the Second Circuit, followed by the City's new administration agreeing with the decision and abandoning the appeals.  One of the complaint's pendent state law claims is a violation of the city's own prohibition of bias-based profiling, NYC Admin. Code §14-151 (passed in 2013 by City Council overriding the then-mayor's veto).

Loitering statutes in general, and more specifically loitering (and even soliciting) for "criminal sex" statutes, whether that sex is criminalized because it is commercial, public, or "unnatural" (as in previous sodomy prohibitions), have always been constitutionally problematic.  And the use of dress or appearance to establish "probable cause" or to constitute elements of a crime are constitutionally suspect. It will be interesting to see whether or not the City defends the action, and if it does, how vigorously.

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 [image: Moulin Rouge by Toulouse Latrec via]

 

 

October 5, 2016 in Current Affairs, Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fourth Amendment, Gender, Interpretation, Race, Recent Cases, Sexual Orientation, Sexuality, Speech | Permalink | Comments (0)

Tuesday, October 4, 2016

Ninth Circuit Denies En Banc Review in Sexual Conversion Ban Case

In the continuing - - - yet seemingly concluding - - - saga of challenges to the constitutionality of California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit's opinion today in Welch v. Brown revisited its August opinion upholding the law.  Today's opinion announces that the Ninth Circuit will not rehear the case en banc - - - "no judge of the court" having requested a vote on the petition for rehearing en banc - - - and issues an amended opinion.

The change from the August opinion is slight, adding an example in the opinion's description of the challengers' argument in one paragraph:

Plaintiffs first argue that, under the Establishment Clause, SB 1172 excessively entangles the State with religion. Their argument rests on a misconception of the scope of SB 1172. For example, Plaintiffs assert that Dr. Welch may not “offer certain prayers or quote certain Scriptures to young people” even “while working as a minister for Skyline Church” within “the four walls of the church . . ., while engaging in those religious activities.” The premise of this Establishment Clause argument is mistaken, and the argument fails, because SB 1172 regulates conduct only within the confines of the counselor-client relationship.

[Added language underlined; italics in both opinions].

With such a small revision, it would seem there was little contention about the case.  Recall that Welch itself is a sequel to Pickup v. Brown, in which the Ninth Circuit declined en banc review (albeit more divisively), to other First Amendment challenges to the California statute. Meanwhile, the Third Circuit in King v. Christie rejected a challenge to New Jersey's similar SOCE-ban statute.  The United States Supreme Court has denied certiorari in both Pickup and King, making prospects for a grant of certiorari in Welch v. Brown rather slim, especially for an eight Justice Court.

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October 4, 2016 in Family, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0)

Monday, September 26, 2016

SCOTUS ConLaw Cases Preview for 2016-17 Term

The United States Supreme Court hears only small fraction of cases: The Court hears about 80 cases a year, of the approximately 8,000 requests for review filed with the Court each year, flowing from the approximately 60, 000 circuit court of appeals decisions and many more thousands of state appellate court opinions. And of this small fraction, generally about half involve constitutional issues, including constitutional criminal procedure issues.

Not surprisingly then, with the new Term starting October 3, the traditional first Monday in October, there are only a handful of constitutional law cases included among the less than 30 the Court has already accepted.

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The Court is set to hear two racial gerrymandering cases, both of which involve the tensions between the Voting Rights Act and the Equal Protection Clause with underlying political contentions that Republican state legislators acted to reduce the strength of Black voters; both are appeals from divided opinions from three-judge courts. In Bethune-Hill v. Virginia State Board of Elections, the challenge is to the three-judge court’s decision and order holding that a number of Virginia House of Delegates districts did not constitute unlawful racial gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Virginia concededly did consider race in the redistricting, but the more precise issue is an interpretation under current doctrine regarding whether race was the predominant (and thus unconstitutional) consideration. The three-judge lower court is faulted for requiring an “actual” conflict between the traditional redistricting criteria and race. The petitioners argue that “where a legislature intentionally assigns voters to districts according to a fixed, nonnegotiable racial threshold, “strict scrutiny cannot be avoided simply by demonstrating that the shape and location of the districts can rationally be explained by reference to some districting principle other than race.” If it were other-wise, they argue, even the most egregious race-based districting schemes would escape constitutional scrutiny. In McCrory v. Harris, a racial gerrymandering case involving North Carolina, the challenge is to a three-judge court’s decision finding a constitutional Equal Protection Clause violation. The plaintiff originally argued that the congressional map drawn by the NC Assembly in 2011 violated the Equal Protection Clause in two districts by making race a predominant factor and by not narrowly tailoring the districts to any compelling interest. North Carolina argues that the conclusion of racial predominance is incorrect and that it need not show that racial considerations were “actually necessary” as opposed to “having good reasons” under the Voting Rights Act. The North Carolina districts have been long controversial; a good timeline is here.

In another Equal Protection Clause case, the classification is sex rather than race.  In Lynch v. Morales-Santana, the underlying problem is differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child; the Second Circuit held that the sex discrimination was unconstitutional, subjecting it to intermediate scrutiny under equal protection as included in the Fifth Amendment. The United States argues that because the context is citizenship, only rational basis scrutiny is appropriate. This issue has been before the Court before. The last time was 2011 in Flores-Villar v. United States when the Court's per curiam affirmance by an "equally divided Court" upheld the Ninth Circuit’s finding that the differential residency requirement satisfied equal protection. In Flores-Villar, Kagan was recused. The Court hearing Morales-Santana, scheduled for oral argument November 9, will also seemingly be only eight Justices, but this time including Kagan.

Trinity Lutheran Church of Columbia, Mo. v. Pauley also includes an Equal Protection issue, but the major tension is between the Free Exercise of Religion Clause of the First Amendment and principles of anti-Establishment of Religion. Like several other states, Missouri has a so-called Blaine Amendment in its state constitution which prohibits any state monies being used in aid of any religious entity. It is concededly more expansive/restrictive than the US Constitution’s Establishment Clause in the First Amendment as the United States Supreme Court has interpreted it. Missouri had a program for state funds to be awarded to resurface playgrounds with used tires; the state denied the Trinity Lutheran Church preschool’s application based on the state constitutional provision. Trinity Lutheran argues that the Blaine Amendment violates both the Free Exercise Clause and the Equal Protection Clause, with the Eighth Circuit siding with the state of Missouri.

There are also several cases involving the criminal procedure protections in the Constitution.  Pena-Rodriguez v. Colorado involves a claim of racial bias on a jury in a criminal case. The Colorado Supreme Court resolved the tension between the “secrecy of jury deliberations” and the Sixth Amendment right to an impartial jury in favor of the former interest. The court found that the state evidence rule, 606(B) (similar to the federal rule), prohibiting juror testimony with some exceptions was not unconstitutional applied to exclude evidence of racial bias on the part of a juror.  Bravo-Fernandez v. United States involves the protection against “double jeopardy” and the effect of a vacated (unconstitutional) conviction. It will be argued in the first week of October. Moore v. Texas is based on the Eighth Amendment’s prohibition of cruel and unusual punishment, with specific attention to capital punishment and the execution of the mentally disabled. In short: what are the proper standards for states to make a determination of mental disability?

Finally - - - at least for now - - - the Court will also be hearing a constitutional property dispute.  Murr v. Wisconsin involves the Fifth Amendment’s “Taking Clause,” providing that private property cannot be “taken” for public use without just compensation. At issue in Murr is regulatory taking. The Court granted certiorari to a Wisconsin appellate court decision regarding two parcels of land that the Murrs owned since 1995; one lot had previously been owned by their parents. Under state and local law, the two lots merged. The Murrs sought a variance to sell off one of the lots as a buildable lot, which was denied. The Murrs now claim that the denial of the variance is an unconstitutional regulatory taking. The Wisconsin courts viewed the two lots as the “property” and concluded that there was no regulatory taking.

We will be updating this post as the Court adds more cases to its docket.

UPDATE September 29, 2016:  The Court granted certiorari to two important First Amendment cases.

September 26, 2016 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Current Affairs, Elections and Voting, Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Race, Religion, Sixth Amendment, Takings Clause | Permalink | Comments (0)

Sunday, September 25, 2016

Ninth Circuit: Green Party's First Amendment Challenge to Arizona's 180-day Party Recognition Deadline

In its opinion in Arizona Green Party v. Reagan, the Ninth Circuit affirmed the district judge's grant of summary judgment in favor of Arizona's Secretary of State, Michele Reagan, in a challenge to Arizona Revised Statute §16-803(A).  The statute requires a petition for recognition of a "new" - - - or actually a minor - - - party to be filed "not less than one hundred eighty days before the primary election for which the party seeks recognition.  The challenge involved the 2014 election; the Green Party had lost its official status the prior year because it failed to garner 5% of the vote and was thus treated as a "new" party under the statute.  The Ninth Circuit first held that there was not an issue of mootness because the deadline issue was likely to "surface again," fitting into the exception for mootness of claims that are “capable of repetition, yet evading review.”

The Ninth Circuit considered the merits of the challenge as one of ballot access and articulated the balancing tests of Anderson v. Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992).  But the Ninth Circuit essentially found any required balancing was impossible because of the Arizona Green Party's stance that the "deadline was unconstitutional as a matter of law" and submitted no evidence to support its claim that the 180-day deadline burdened its constitutional rights.

Analogy and rhetoric are no substitute for evidence, particularly where there are significant differences between the cases the Green Party relies on and the Arizona election system it challenges. The Supreme Court and our sister circuits have emphasized the need for context-specific analysis in ballot access cases. . . .

That filing deadlines of similar lengths may prove unconstitutionally burdensome in the context of some election schemes does not eliminate the need for evidence that a severe burden was imposed by the filing deadline in this case.

Thus, "absent evidence of the particular burdens imposed in this case," the panel concluded that  "at best, the 180-day petition- filing deadline imposes a de minimis burden on constitutional rights."  And given the de minimus burden, Arizona faced a very low hurdle: that the filing deadline served "important regulatory interests."

Unlike the Green Party, the Secretary [of State of Arizona] presented substantial evidence that details the processes for ballot access and the rationale behind each step in the timeline at each stage of the election process. The nested deadlines leading up to the Arizona primary, as well as the tasks that must be accomplished between the primary and general election, reflect an effort by the state to achieve the important goal of orderly elections. For example, the number of required signatures for independent candidate petitions depends on the number of registered voters who are not affiliated with a recognized party. For this reason, the state must know how many recognized parties will appear on the ballot before setting the candidate signature requirements, at which point candidates have two months to collect signatures. As Arizona’s Assistant State Election Director explained, “[i]f the petition deadline to obtain recognized party status were moved to a later date, new party candidates would have little or no meaningful opportunity to obtain the requisite number of signatures to qualify for the party’s primary ballot.” She also noted that in late May, Arizona counties mail a list of recognized political parties holding primaries in a particular election to the more than 1.9 million early registered voters, and that adding additional parties after the mailing deadline could therefore impose considerable burdens on the counties and lead to voter confusion. Also, in preparation for the primary, ballots must be translated into Spanish and several Native American languages, a process that takes time.

It does seem as if the Green Party of Arizona might have a successful challenge if it could marshal its evidence of the burden it faces under the 180-day deadline.
 
 
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September 25, 2016 in Elections and Voting, First Amendment, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0)

Monday, September 19, 2016

Daily Video: Loving The Movie

The official trailer for the movie, Loving, based on Loving v. Virginia (1967) and due to be released November 4, is available:

 

 

The film has already received some positive reviews including from audiences at the Cannes Film Festival.

The case is always a popular read with ConLaw students and the film will certainly only accentuate that interest. 

The trailer includes reference to the United States Supreme Court case, but it is best offered to students as a supplement on the course website rather than as precious minutes of class time.

September 19, 2016 in Equal Protection, Family, Fourteenth Amendment, History, Race, Supreme Court (US), Teaching Tips | Permalink | Comments (3)

Saturday, September 17, 2016

Constitution Day 2016

It's Constitution Day - - - week - - - yet again.  And as we do every year, we commemorate it with a few notes.

First, there is the issue of the constitutionality of constitution day:

As we've said, it's quite possible that Constitution Day is itself unconstitutional. One of the classic discussions is from ConLawProf Kent Greenfield in 2005 where he argues:

The right to be free of government-compelled speech - even speech that is worthwhile and beneficial - has been a "fixed star in our constitutional constellation" for over sixty years. That quote comes from Justice Robert Jackson, writing for the Supreme Court striking down a law expelling students who refused to recite the Pledge of Allegiance. Even though the country was in the middle of World War II at the time, the Court recognized that patriotism must be voluntary to be meaningful. Jackson did not mince words: "Those who begin coercive elimination of dissent soon find themselves exterminating dissenters."

The same is true now. Though we are at war, if we have to mandate patriotism or respect for the constitution, then we have already lost.

In part, this is because Constitution Day is a "mandate":

Federal law mandates that:

Each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution.

Eleventh Amendment Department of Education regulations provide that the law:

requires that Constitution Day be held on September 17 of each year, commemorating the September 17, 1787 signing of the Constitution. However, when September 17 falls on a Saturday, Sunday, or holiday, Constitution Day shall be held during the preceding or following week.

 

And then there is the issue of whether we should be honoring the Constitution's inception or its reconstruction:

LawProf Colin Starger and others argue that the commemorative day should be February 3:

On that date in 1870, our nation ratified the last of the Civil War Amendments. That date symbolizes our commitment to reconstruct the Founders’ immoral compromise and place under national protection the inalienable rights of all the nation’s people.

 This year, President Obama's Presidential Proclamation stressed immigration - - - and included a mention of refugees - - - and also articulated a "living constitutionalism" theory:

 

America is more than a piece of land -- it is an idea, a place where we can contribute our talents, fulfill our ambitions, and be part of something bigger than ourselves. Each year on Citizenship Day, we celebrate our newest citizens who raise their hands and swear a sacred oath to join our American family. The journey they have taken reminds us that immigration is our origin story. For centuries, immigrants have brought diverse beliefs, cultures, languages, and traditions to our country, and they have pledged to uphold the ideals expressed in our founding documents. They come from all around the world, mustering faith that in America, they can build a better life and give their children something more. That is why I was proud to create the White House Task Force on New Americans, which is helping to build welcoming communities around our country and enhance civic, economic, and linguistic integration for immigrants and refugees. Through the Task Force, Federal agencies and local communities are working together to raise awareness about the rights, responsibilities, and opportunities of citizenship -- and to give immigrants and refugees the tools they need to succeed.

As a Nation of immigrants, our legacy is rooted in their success. Their contributions help us live up to our founding principles. With pride in our diverse heritage and in our common creed, we affirm our dedication to the values enshrined in our Constitution. We, the people, must forever breathe life into the words of this precious document, and together ensure that its principles endure for generations to come.

 

 

September 17, 2016 in Current Affairs, Executive Authority, Fourteenth Amendment, Theory | Permalink | Comments (0)

Monday, September 12, 2016

Fifth Circuit Panel Denies Stays of Texas Executions by Pentobarbital

In its opinion in Wood v. Collier, Judge Patrick Higginbotham wrote for the panel and rejected the claims of death row inmates that Texas is obliged by the Eighth Amendment’s prohibition on cruel and unusual punishment and the Fourteenth Amendment’s guarantee of equal protection under the law to re-test the execution drug - - -a single, five-gram dose of pentobarbital - - -  to assure it does not present a high risk of unnecessary pain.

Pentobarbital_DOJThe identity and sources of drugs to accomplish "lethal injection" has been much litigated, including the Court's 2015 decision in Glossip v. Gross, rejecting an Eighth Amendment challenge to Oklahoma's three-drug lethal injection cocktail. As this Fifth Circuit opinion notes:

Texas originally used pentobarbital purchased from a pharmaceutical firm in its executions. However in 2011, Lundbeck, the Danish pharmaceutical firm that produces manufactured pentobarbital, refused to supply the drug to states that execute by lethal injection.In response, in September 2013, Texas began purchasing pentobarbital compounded by pharmacies.Texas alleges, and Appellants do not dispute, that Texas has used compounded pentobarbital to execute thirty- two prisoners since 2013 without issue.

Yet in June, Texas agreed to re-test the pentobarbital for a death sentenced inmate, mooting his civil action.  The inmates here argue that this settlement essentially substantiates their Eighth Amendment claim and creates an Equal Protection Clause claim.  The court disagreed:

However one kneads the protean language of equal protection jurisprudence, the inescapable reality is that these prisoners have not demonstrated that a failure to retest brings the risk of unnecessary pain forbidden by the Eighth Amendment. Attempting to bridge this shortfall in their submission with equal protection language, while creative, brings an argument that is ultimately no more than word play.

In short, the "strategic decision" of Texas to re-test the drug for one inmate is irrelevant for the others, especially "in the context of an ever-changing array of suits attacking its use of capital punishment from all angles."

 

September 12, 2016 in Courts and Judging, Criminal Procedure, Equal Protection, Fourteenth Amendment, Medical Decisions, Opinion Analysis | Permalink | Comments (0)

Wednesday, August 24, 2016

Sixth Circuit's Mixed Ruling on First Amendment Challenges to Kentucky's Ethics Code for Judicial Elections

In its opinion in Winter v. Wolnitzek authored by Judge Jeffrey Sutton for the unanimous Sixth Circuit panel, the court considered eight provisions of the Kentucky Code of Judicial Conduct against facial and as-applied First Amendment challenges after first concluding that there was a sufficient case or controversy under Article III.

The court applies strict scrutiny to the State's efforts to regulate the campaign speech of judicial candidates under the United States Supreme Court's decision last year in Williams-Yulee v. The Florida Bar.  In Williams-Yulee, the no direct solicitation of contributions prohibition survived and a few of the provisions in Winter likewise survive.  The Kentucky Supreme Court, pursuant to a certification proceeding, rendered its interpretation on three of the canons.

In succinct fashion - - - the analysis of the eight provisions is less than ten manuscript pages - - - the court determined the constitutional status of the varying prohibitions as follows:

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  • The campaigning clause, which prohibits a candidate for judicial office from campaigning as a member of a political organization was ruled unconstitutional as vague and overbroad.  Although the Kentucky Supreme Court had clarified this provision to mean that the candidate cannot portray themselves, either directly or by implication, as "the official nominee" of the party.  The court held there was too much slippage here, so that the use of a definitive article ("the Republican candidate") was not necessarily an endorsement as official nominee, especially when combined with other terms ("the moderate Republican candidate.")
  • The speeches clause, which prohibited judicial candidates from making speeches for or against a political party, was unconstitutional as not narrowly tailored.  The court noted that this does not prohibit a tweet for or against a political party, and distinguished a prohibition of judicial candidates from making speeches on behalf of a political organization (as the Ninth Circuit upheld).
  • The contributions clause, which prohibits judicial candidates from making financial contributions to a political organization or candidate was upheld.  Not withstanding the court's recognition that "money is speech" under Buckley v. Valeo.  The court held that this clause "narrowly serves the Commonwealth’s compelling interest in preventing the appearance that judicial candidates are no different from other elected officials when it comes to quid pro quo politics." On this, the Sixth Circuit reversed the district judge.
  • The endorsements clause, which prohibits judicial candidates from publicly endorsing or opposing candidates for public office was likewise constitutional.  Again, the court stressed the quid pro quo nature of endorsements.
  • The "acting as a leader" clause, which prohibits a judge from acting as a leader or holding any office in a political organization was constitutional on its face as well as-applied to the request to host a political event that is a fundraiser.  The fundraiser, the court reasoned, brings the judge's impartiality into question.
  • The false statements clause, prohibiting judicial candidates from making false statements with knowledge or reckless disregard of the truth is perhaps the most interesting result.  The court distinguishes another Sixth Circuit case - - - Susan B. Anthony List v. Driehaus - - - which was not only not limited to material statements (as it was by the Kentucky Supreme Court's certification opinion), but also makes the Williams-Yulee distinction between political and judicial candidates.  However, the court found that as-applied to a judicial candidate's statement to be "re-elected" when in fact she occupied the judicial position because of appointment rather than election, the provision was unconstitutional.  The ban there "outstrips" the government interest and did not provide sufficient "breathing space."
  • The commits clause, prohibiting judicial candidates from making pledges or promises, was remanded.  This was not a provision that was certified to the Kentucky state supreme court and the Sixth Circuit panel implied that it should be.  The problem is determining whether an "issue-based" commitment is inconsistent with the impartial performance of judicial duties, with the Sixth Circuit panel stating that if "Kentucky interprets “impartiality” to mean solely “impartiality as to parties,” the clause may well advance a compelling interest and do so narrowly."

The court ends its opinion, as it began, by acknowledging the "cross-currents" of First Amendment challenges to judicial, rather than political, campaigns.  The court navigated surely and perhaps overly-speedily through the multiple issues landing with mixed results.  It does seem that the court will be visiting this terrain again.

August 24, 2016 in Campaign Finance, Courts and Judging, First Amendment, Fourteenth Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Ninth Circuit Upholds Upholds California Ban on Sexual Orientation Conversion Therapy Against Religion Clauses Challenge

In a sequel to the Ninth Circuit's 2013 decision in Pickup v. Brown upholding California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit upheld the same law against a facial challenge based upon the First Amendment's Religion Clauses in its relatively brief opinion in  Welch v. Brown.

The panel in Welsh - - - the same panel as in Pickup - - - held that the SB 1172 violated neither the Establishment Clause nor the Free Exercise Clause.  The panel rejected the challengers' interpretation of the law as applying to members of the clergy because the law specifically exempts religious clergy "as long as they do not hold themselves out as operating pursuant" to any therapist licenses. 

The panel also rejected the contention that the law has the primary effect of inhibiting religion. That some minors who seek sexual orientation conversion may have religious motivations does not rise to the level of an inhibition of religion, especially given that the law was not targeted at religious motivated conduct.  The panel noted that the law's legislative findings focused on "social stigmatization" and "family rejection" rather than religiosity.  The panel likewise rejected the Free Exercise Clause claim that the law was not neutral as to religion based on the same rationales and cited the Third Circuit's similar conclusion regarding New Jersey's prohibition of sexual conversion therapy in King v. Christie.

The court also reiterated its rejection of any "privacy" claim based on its previous analysis in Pickup.

So far, challenges to state prohibitions of sexual conversion therapy for minors have had little success.

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 [image via]

 

August 24, 2016 in Courts and Judging, Disability, Due Process (Substantive), Establishment Clause, Family, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation | Permalink | Comments (0)

Friday, July 29, 2016

Fourth Circuit Enjoins North Carolina's Voting Amendments as Discriminatory

In its extensive opinion in North Carolina State Conference of the NAACP v. McCrory, the Fourth Circuit has permanently enjoined the implementation of North Carolina SL 2013-381’s photo ID requirement and changes to early voting, same-day registration, out-of-precinct voting, and preregistration.  The Voter Information Verification Act, the Fourth Circuit concluded, made a racial classification although it seemed neutral, reasoning that

on the day after the Supreme Court issued Shelby County v. Holder (2013), eliminating preclearance obligations, a leader of the party that newly dominated the legislature (and the party that rarely enjoyed African American support) announced an intention to enact what he characterized as an “omnibus” election law. Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.

Moreover,

In response to claims that intentional racial discrimination animated its action, the State offered only meager justifications. Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation.

The Fourth Circuit concluded that the North Carolina Voter Information Verification Act violated both the Fourteenth Amendment's Equal Protection Clause and §2 of the Voting Rights Act.  For both, the hurdle was finding the legislature acted with racially discriminatory intent.  Most of the opinion is devoted to this discussion. The Fourth Circuit reversed the district judge on this basis, writing that the judge seemed "to have missed the forest in carefully surveying the many trees," and ignoring "critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina."

In the Equal Protection analysis, the Fourth Circuit applied the well-established requirement of racial intent (as well as effects) from Washington v. Davis. In considering whether the seemingly-neutral voting requirements were enacted “because of,” and not “in spite of,” their discriminatory effect, citing Pers. Adm’r of Mass. v. Feeney (1979), the Fourth Circuit discussed the factors of Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977):

In Arlington Heights, the Court set forth a nonexhaustive list of factors to consider in making this sensitive inquiry. These include: “[t]he historical background of the [challenged] decision”; “[t]he specific sequence of events leading up to the challenged decision”; “[d]epartures from normal procedural sequence”; the legislative history of the decision; and of course, the disproportionate “impact of the official action -- whether it bears more heavily on one race than another.”

The Fourth Circuit then discussed these factors individually.  Importantly, on the sequence of events, the opinion stated that 

the General Assembly’s eagerness to, at the historic moment of Shelby County’s issuance, rush through the legislative process the most restrictive voting law North Carolina has seen since the era of Jim Crow -- bespeaks a certain purpose. Although this factor, as with the other Arlington Heights factors, is not dispositive on its own, it provides another compelling piece of the puzzle of the General Assembly’s motivation.

But, as the Fourth Circuit noted - - - and for which it faulted the district court - - - the factors should not be considered in isolation. Instead, Arlington Heights requires a totality of circumstances analysis. 

The Fourth Circuit having found that race was a factor in the enactment of the Voter Information Verification Act (emphasis in original), the burden shifted to the state to demonstrate that the law would have been enacted without this factor, by assessing "whether a law would have been enacted without a racially discriminatory motive by considering the substantiality of the state’s proffered non-racial interest and how well the law furthers that interest." The Fourth Circuit faulted the district judge for conducting this analysis through a "rational-basis-like lens," when such deference is "wholly inappropriate." 

The Fourth Circuit discussed each challenged provision of the Voter Information Verification Act. On the voter identification requirement specifically, the Fourth Circuit found Crawford largely inapplicable given that Crawford did not involve even an allegation of intentional race discrimination. It found that while preventing voter fraud is a valid government interest, the means chosen are both too narrow and too broad.  Similarly, the Fourth Circuit found that the other provisions could not satisfy the standard:

In sum, the array of electoral “reforms” the General Assembly pursued in SL 2013-381 were not tailored to achieve its purported justifications, a number of which were in all events insubstantial. In many ways, the challenged provisions in SL 2013-381 constitute solutions in search of a problem. The only clear factor linking these various “reforms” is their impact on African American voters. The record thus makes obvious that the “problem” the majority in the General Assembly sought to remedy was emerging support for the minority party. Identifying and restricting the ways African Americans vote was an easy and effective way to do so.

The Fourth Circuit panel was unanimous to this point, but divided as to the relief.  Judge Diana Gribbon Motz, wrote the panel's opinion except to Part V.B., from which she dissented.  Her dissent is from a permanent injunction as to the photo identification requirement given that the North Carolina legislature passed a "reasonable impediment exception" from that requirement.  She would"only temporarily enjoin the photo ID requirement and remand the case to the district court to determine if, in practice, the exception fully remedies the discriminatory requirement or if a permanent injunction is necessary."

The dissenting point is a small one.  The Fourth Circuit panel unanimously held that the North Carolina Voter Information Verification Act violates both the Equal Protection Clause and §2 of the Voting Rights Act.

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 [image via]

July 29, 2016 in Current Affairs, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, Race, Recent Cases | Permalink | Comments (1)