Wednesday, November 18, 2015

Federal Judge Finds Transgender Status a Fundamental Privacy Right

In an opinion denying a motion to dismiss in Love v. Johnson, United States District Judge for the Eastern District of Michigan Nancy Edmunds has concluded there is a fundamental privacy right in one's transgender status under the Fourteenth Amendment's Due Process Clause.  The constitutional challenge is to Michigan's policy for changing the sex designation on state-issued identification, including drivers licenses.  Under the policy, the only document that is accepted as a proof of sex designation is a certified birth certificate.   Thus, transgendered individuals would need an amended certified birth certificate - - - for which the procurement process is described as "onerous" - - - and could not use passports, which are specifically excluded by the Michigan policy.

sample Michigan driver license via

In finding a fundamental right, the judge considered Sixth Circuit precedent that there were two types of fundamental rights protected “by the right to privacy that is rooted in substantive due process”:  the interest in “independence in making certain kinds of important decisions,” and the “interest in avoiding disclosure of personal matters.”  The court found that the latter - - - the "informational privacy" interest - - - was implicated.  This right must not only relate to a "fundamental liberty interest" but must satisfy either of two conditions: "the release of personal information could lead to bodily harm" or "the information released was of a sexual, personal, and humiliating nature."  The judge found that both 'the potential for harm' and 'the personal nature' conditions were satisfied.  The judge rejected the State's argument that the plaintiffs had not satisfied the harm prong because they had not shown sufficiently specific danger to themselves; it recognized "hostility and intolerance" and cited supporting Second Circuit caselaw.

The judge then applied strict scrutiny, writing that when

state action infringes upon a fundamental right, “such action will be upheld under the substantive due process component of the Fourteenth Amendment only where the governmental action furthers a compelling state interest, and is narrowly drawn to further that state interest.”  Defendant vaguely identifies two purported interests–albeit not in the context of a fundamental right–in support of the Policy: (1) “maintaining accurate state identification documents” to “promote effective law enforcement” and, (2) ensuring “that the information on the license is consistent with other state records describing the individual.”

[citations and footnote omitted].   The judge found that the means chosen - - - the restrictive policy - - - bears "little, if any, connection" to the "purported interests."  The judge considered two facts especially salient.  First, the Michigan policy applied only to those wishing to change the sex designation on a drivers license, not to procure an original drivers license (in which case a passport would be acceptable identification).  Second,  Michigan's policy was especially restrictive: the majority of other states, as well as the federal government, did not require a certified birth certificate and thus the judge stated she was "unable to conclude at this juncture that the Policy narrowly serves the state’s interest in maintaining “accurate” identification documents or promoting effective law enforcement."

While the complaint raised other constitutional claims, including an equal protection claim, the judge found the motion to dismiss need not be considered as to those claims given the conclusion that there is a valid substantive due process claim which will move forward.


November 18, 2015 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexuality | Permalink | Comments (1)

Tuesday, November 17, 2015

Federal Judge Applies Intermediate Scrutiny in Transgender Equal Protection Claim

Considering a complaint regarding an arrest during the 2011 Occupy Wall Street protests, United States District Judge Jed Rakoff has allowed the Equal Protection Clause claim to proceed in his opinion  in Adkins v. City of New York.

 The judge based his opinion on the Second Circuit's 2012 decision in United States v. Windsor (affirmed on other grounds by the United States Supreme Court):

[The Second Circuit in] Windsor held that gay people were a quasi-suspect class on the basis of four factors: gay people have suffered a history of persecution; sexual orientation has no relation to ability to contribute to society; gay people are a discernible group; and gay people remain politically weakened. While transgender people and gay people are not identical, they are similarly situated with respect to each of Windsor’s four factors.

OccupyJudge Rakoff then applied each of the factors (derived from Carolene Products' footnote four) to hold that transgender people are a quasi-suspect class.  Indeed, Judge Rakoff decides that in each of the factors, transgender people more easily meet the factor than "gay people" did at the time of the Second Circuit's decision in Windsor.  For example, on the political weakness factor, Judge Rakoff reasoned:

Fourth, transgender people are a politically powerless minority. “The question is whether they have the strength to politically protect themselves from wrongful discrimination.” Windsor, 699 F.3d at 184. Particularly in comparison to gay people at the time of Windsor, transgender people lack the political strength to protect themselves. For example, transgender people cannot serve openly in the military, see Department of Defense Instruction 6130.03 at 48 (incorporating changes as of September 13, 2011), as gay people could when Windsor was decided. See Don’t Ask, Don’t Tell Repeal Act of 2010, Pub.L. No. 111–321, 124 Stat. 3515. Moreover, like gay people, it is difficult to assess the degree of underrepresentation of transgender people in positions of authority without knowing their number relative to the cisgender population. However, in at least one way this underrepresentation inquiry is easier with respect to transgender people: for, although there are and were gay members of the United States Congress (since Windsor, in both houses), as well as gay federal judges, there is no indication that there have ever been any transgender members of the United States Congress or the federal judiciary.

In applying intermediate scrutiny, the judge rejected the government's argument that there was an important safety interest by concluding that there were no actual safety concerns according to the allegations of the complaint (taken as true in the procedural posture of the motion to dismiss).  Judge Rakoff continued:

Moreover, defendants cannot argue their actions were substantially related to ensuring plaintiff’s safety when they removed him from an allegedly safe place and caused him injury, albeit minimal injury, by handcuffing him to a wall next to the sole bathroom in the precinct.

The judge found that the individual defendants were entitled to qualified immunity, especially given that the Second Circuit's decision in Windsor occurred after the October 2011 Occupy Wall Street protest.  However, the judge found that the City of New York could be held liable under a specific pattern on conduct in the unequal treatment of transgender persons.

Thus, the case moves to settlement as so many of the Occupy arrest cases have done - - - unless New York City chooses to appeal the decision that transgendered individuals merit intermediate scrutiny under the Fourteenth Amendment's Equal Protection Clause.

[image via]

November 17, 2015 in Equal Protection, Fourteenth Amendment, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1)

Friday, November 13, 2015

Supreme Court Grants Certiorari in Texas HB2 Abortion Case

The United States Supreme Court today granted certiorari in Whole Woman's Health v. Cole to the Fifth Circuit's decision essentially upholding the bulk of the controversial HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis).   Recall that a divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.

The Fifth Circuit's most recent opinion, reversing the district judge, held that HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements, did not impose an "undue burden" on women and were thus constitutional under the Fourteenth Amendment's Due Process Clause. 

596px-Texas_travel_map.svgThe Fifth Circuit did find that HB2 was unconstitutional as applied to the Whole Woman's Health facility in McAllen, Texas, but not as to the the Reproductive Services Facility in El Paso, Texas.  The facility in McAllen is the only one in the "Rio Grande Valley."  However, there is another facility close to the closed facility in El Paso - - - a mere 12 miles away - - - but importantly across the state line in New Mexico.  The Fifth Circuit distinguished its own opinion in Jackson Women's Health Organization v. Currier regarding Mississippi's restrictive abortion law which had the effect of closing all the clinics in the state, by emphasizing the fact that even before HB2 "half of the patients at the St. Teresa [New Mexico] clinic came from El Paso which is in the same 'cross-border' metropolitan area as St. Teresa," and including a footnote that the court's analysis would be different "in the context of an international border."   Thus, the court found it irrelevant that the nearest in-state facility was 550 miles away.

The United States Supreme Court's grant of certiorari means that the Court will consider direct abortion regulations - - - and thus the continuing precedential value of Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) - - - for the first time since Carhart v. Gonzales in 2007 in which the Court upheld the controversial federal so-called partial birth abortion ban.  The Court's most recent foray into the abortion controversy was its 2014 opinion in McCullen v. Coakley finding Massachusetts' buffer-zone legislation protecting abortion clinics violative of the First Amendment.

November 13, 2015 in Abortion, Courts and Judging, Current Affairs, Due Process (Substantive), Fourteenth Amendment, Gender, Reproductive Rights, Supremacy Clause | Permalink | Comments (0)

Monday, November 2, 2015

Court Hears Oral Arguments in Batson Challenge to Death Sentence

The Court heard oral arguments today in Foster v. Humphrey regarding a challenge to a 1987 conviction and death sentence by an all-white Georgia jury based on  Batson v. Kentucky (1986) applying equal protection principles to peremptory challenges in jury selection.

A seemingly new issue on the case involved whether or not the United States Supreme Court should be hearing the case at all.  While the Court granted certiorari to the Georgia Supreme Court (as we discussed and as the petition requested), the problem is that the Georgia Supreme Court had denied review . . . . for reasons that are unclear.  Was it discretionary? Was that discretion bounded?  Did the Georgia Supreme Court's denial of review for lack of a meritorous claim constitute a decision on the merits?  And even more complexly, did the Georgia state courts have an adequate and independent state ground - - - res judicata - - - under Michigan v. Long (1983)?  (Beth Burton, the attorney for Georgia seemed to concede this was not the case.)  And to add yet another layer of complexity, even if the United States Supreme Court decided it should review the matter, what exactly should it review? As Chief Justice Roberts asked, "In other words, are we addressing just whether there's arguable merit to the claim or are we addressing the claim on its own merits?"

On the merits of the Batson claim, the problem arises from the "smoking gun" of prosecutorial notes singling out the Black potential jurors in the case.  Although Steve Bright, attorney for Foster suggested that there was "an arsenal of smoking guns" here, Justice Scalia suggested that Foster had to "establish [in order ] to reverse the Georgia courts is that the new smoking gun, assuming that all the rest were not enough to demonstrate a Batson violation ­­ the new smoking guns would tip the scale."  Justice Kagan seemed to see it differently, suggesting to Beth Burton, the Georgia Deputy Attorney, that this was a clear Batson violation:

You have a lot of new information here from these files that suggests that what the prosecutors were doing was looking at the African-­American prospective jurors as a group, that they had basically said, we don't want any of these people.  Here is the one we want if we really have to take one.  But that there ­­ all the evidence suggests a kind of singling out, which is the very antithesis of the Batson rule.

Burton initially suggested that the prosecutors' notes highlighting Black jurors was that the prosecutor was preparing for a Batson challenge.  Justice Breyer expressed some incredulity at this based on the fact that prosecutors never previously advanced such a reason.  Justice Breyer also seemingly expressed incredulity at the prosecutors' argument that there were "40 different reasons" - - - other than race - - - meant that one was truly valid, rather than drawing an inference from the sheer number of reasons that they were invalid. 

Justice Kennedy, perhaps the decisive vote, seemed convinced the prosecutors committed a Batson violation: "They've ­­ - - - they've made a mistake - - - ­­ they've made a mistake of - - -­­ in Batson."  But Justice Kennedy was also quite vocal in pressing the attorneys on the procedural issue, which could be an escape hatch for the Court in what could prove to be a difficult case.




November 2, 2015 in Courts and Judging, Criminal Procedure, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Race, Supreme Court (US) | Permalink | Comments (0)

Tuesday, October 27, 2015

Ninth Circuit on Unconscious Bias, Equal Protection, and Batson

A divided Ninth Circuit panel has affirmed the district judge in granting habeas corpus and vacating a death sentence in its opinion in Crittenden v. Chappell.

Crittenden's claimed the prosecutor at trial excluded an African-American prospective juror on account of her race, in violation of the Equal Protection Clause of the Fourteenth Amendment, as interpreted in Batson v. Kentucky (1986). The Ninth Circuit had previously clarified that the peremptory challenge at issue need not be motivated solely by race, but only “motivated in substantial part” by race, “regardless of whether the strike would have issued if race had played no role.” On remand, the district judge found that the prosecutor was substantially motivated by race.

Lady-justice-juryWhile there are several issues in the case, including deference, appellate procedure, and retroactivity, the issue of "intent" under equal protection doctrine in the Batson context was central. The district judge's opinion engaged in specific comparisons regarding jurors and also stated "[t]he [side-by-side juror] comparisons demonstrate that . . . [the prosecutor] was motivated, consciously or unconsciously, in substantial part by race."   The relevance of "unconsciously" was a division among the Circuit judges.  For the majority, this was a "passing comment" in the district judge's opinion, and "all the court meant was, whatever the explanation for the prosecutor’s racial motive, that motive was a substantial reason for his use of a peremptory strike." (emphasis in original).  The majority added, "In other words, why the prosecutor had a conscious racial motive to strike [the potential juror] Casey in the first place – whether or not 'unconscious racism' partly explained that motive – was simply irrelevant to the Batson inquiry."  It interestingly added this footnote:

It was relevant, of course, to the prosecutor’s reputation. The district court’s reference to “unconscious racism” spared him from being found a racist. By suggesting the prosecutor may have had more benign racial motives for the strike, or that his racial motive may have been influenced by unconscious racism, the court hoped to shield the prosecutor from possible disrepute. As the court made clear, however, this effort was not designed to – and did not – detract from the court’s key finding that the strike was consciously motivated by race.

Thus, because the majority upheld the district court’s finding of a conscious racial motive, "we do not – and need not – address whether unconscious bias can establish a Batson violation."

Judge Margaret McKeown dissented from the opinion authored by Judge Raymond Fisher and joined by Judge Marsha Berzon, arguing that there needed to be a clearer indication of discriminatory purpose:

The remaining question is whether, in striking [the potential juror] Casey, the prosecutor had a discriminatory purpose. “‘Discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected . . . a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Hernandez v. New York (1991) (plurality) (quoting Person. Admin. of Mass. v. Feeney,  (1979)). The touchstone, as described in our caselaw, is whether race was a “substantial motivating factor” in the prosecutor’s decision to strike Casey.

(ellipses in original).  For dissenting judge McKeown, the burden was on the defendant to prove purposeful discrimination and he failed to do so. She added,

This case calls to mind Justice Breyer’s observation that the Batson inquiry can be an “awkward, sometime hopeless, task of second-guessing a prosecutor’s instinctive judgment—the underlying basis for which may be invisible even to the prosecutor exercising the challenge.” Miller-El v. Dretke (2005) (Breyer, J., concurring). In view of the record of what actually happened, the trial judge’s findings and the ultimate composition of the jury, our retrospective parsing simply cannot elevate ambiguous, speculative foundation to proof that the prosecutor was motivated in substantial part by racism.

The problem of the degree of proof of intent in equal protection claims generally and Batson specifically has vexed the courts.  Recall that the United States Supreme Court will be taking another look at equal protection doctrine under Batson this term in Foster v. Humphrey; the lower court had held that  merely because the prosecutor's notes and records revealed "that the race" - - - meaning Black - - - "of prospective jurors was either circled, highlighted or otherwise noted on various lists" did not establish purposeful discrimination. 

October 27, 2015 in Courts and Judging, Criminal Procedure, Equal Protection, Fourteenth Amendment, Opinion Analysis, Race | Permalink | Comments (0)

Tuesday, October 13, 2015

Third Circuit Reinstates Constitutional Claim Against NYC for Muslim Surveillance

The Third Circuit's 60 page opinion today in Hassan v. City of New York reverses and remands the terse dismissal of the complaint in February 2014 by United States District Judge William Martini.  The original complaint alleged that the New York City Police Department’s surveillance program targeted New Jersey Muslims solely on the basis of religion, thereby violating their First and Fourteenth Amendment rights.  The district judge found that there was no standing - - - in part because the plaintiffs did not know about their surveillance until it was revealed by the press and thus had no injury - - - and that the complaint did not state a plausible claim - - - in part because the "police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself."

The unanimous opinion by Judge Thomas Ambro, joined by Julio Fuentes, and with a very brief concurrence by Jane Roth regarding the standard of equal protection scrutiny to be applied, comes complete with a Table of Contents.  (Query whether opinions are increasingly availing themselves of a brief-like TOC: compare District Judge Shira Scheindlin's opinion in the NYC stop and frisk lawsuit, although her opinion is more than 3 times as long with many more footnotes.  Or perhaps there is something about NYC police practices that calls for a TOC?).

After a rehearsal of the NYC surveillance program and its disclosure, the court considers the problem of Article III standing.  For the Third Circuit, the "injury in fact" requirement of standing is satisfied by the plaintiffs' allegation of the denial of equal treatment on the basis of their religion under the Equal Protection Clause, as well as the First Amendment.  The court rejected NYC's arguments that there needed to be a tangible benefit denied, that there needed to be an overt condemnation (interestingly contrasting Plessy v. Ferguson and Brown v. Board of Education); and that the injuries were not sufficiently particularized.  As to the "fairly traceable" causation requirement, the court soundly rejected the contention that it was the only disclosure of the surveillance by the press rather than the surveillance itself that caused the injury. Finally, in its brief discussion of "redressability," the court, quoting an Eleventh Circuit case, noted that "While we cannot predict 'the exact nature of the possible relief . . . without a full development of the facts, an order enjoining the policy and requiring non-discriminatory investigation and enforcement would redress the injury.'"

On the equal protection issue, the Third Circuit held that the complaint plausibly alleged that the NYC surveillance program made a facial religious classification.  It further held that this religious classification does not require an "invidious motive.": 

While the absence of a legitimate motive may bear on whether the challenged surveillance survives the appropriate level of equal-protection scrutiny, “intentional discrimination” need not be motivated by “ill will, enmity, or hostility” to contravene the Equal Protection Clause.

The court here interestingly cites the district judge's decision in the NYC stop and frisk case. 

The Third Circuit thus finds that the NYC surveillance program was facially religious, but then discussed the tier of scrutiny that religious classifications should merit:

Perhaps surprisingly, neither our Court nor the Supreme Court has considered whether classifications based on religious affiliation trigger heightened scrutiny under the Equal Protection Clause. . . .

Although the answer to this question is not found in binding precedent, we hardly write on a clean slate. To start, it has long been implicit in the Supreme Court’s decisions that religious classifications are treated like others traditionally subject to heightened scrutiny, such as those based on race.  [Citations omitted]

This line of comment can be traced back to the famous footnote four of the Supreme Court’s 1938 decision in Carolene Products, where the Court suggested that discriminatory legislation should “be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment” if “directed at particular religious, or national, or racial minorities.”

After discussing a number of appellate court decisions, the Third Circuit panel held:

Today we join these courts and hold that intentional discrimination based on religious affiliation must survive heightened equal-protection review. Before turning more fully to our reasoning, however, we pause to reiterate that the term “heightened scrutiny,” as we use it, encompasses both “intermediate scrutiny” and “strict scrutiny.”

The panel stated that it need not - - - and should not - - - "determine in connection with its motion to dismiss which of the two applies, and we leave that question for the District Court in the first instance when and if it becomes necessary to decide it."  However, the court does engage in a Carolene Products-type of analysis to substantiate its conclusion, devoting some discussion to the "immutability" factor (which of course was not in the Carolene Products footnote).  It also noted that the "history of religious discrimination in the United States is intertwined with that based on other protected characteristics, including national origin and race," and that the allegations of the complaint reflected this intertwinement.

It is on this point that Judge Roth differs, arguing in her concurrence that intermediate scrutiny should apply and providing a somewhat personal explanation:

In my opinion, “intermediate scrutiny” is appropriate here. I say this because “intermediate scrutiny” is the level applied in gender discrimination cases. I have the immutable characteristic of being a woman. I am happy with this condition, but during my 80 years on this earth, it has caused me at times to suffer gender discrimination. My remedy now for any future gender discrimination would be reviewed with “intermediate scrutiny.” For that reason, I cannot endorse a level of scrutiny in other types of discrimination cases that would be stricter than the level which would apply to discrimination against me as a woman.

The Third Circuit did acknowledge the national security interest, but added that "it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights," explicitly invoking Korematsu and Hirabayashi.

The court's relatively brief First Amendment conclusion similarly rejects NYC's claim that animus must be proven.

The court concludes:

What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that “[l]oyalty is a matter of the heart and mind[,] not race, creed, or color.” [citation omitted].

image via



October 13, 2015 in Equal Protection, Federalism, Fourteenth Amendment, Opinion Analysis, Race, Religion | Permalink | Comments (1)

Monday, September 28, 2015

Ninth Circuit Rejects Franchisers' Constitutional Challenges to Seattle's $15 Minimum Wage

Affirming the district judge's denial of a preliminary injunction, the Ninth Circuit's opinion in International Franchise Ass'n v. City of Seattle rejected all of the constitutional challenges to a Seattle provision that deemed franchises included in the definition of "large employers" and thus subject to the new $15 minimum wage.  Recall that the complaint challenged  the provision under the (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment, the First Amendment, preemption under the Lanham Act (trademarks), and state constitutional provisions.

Photo by Steve Rhodes via

The unanimous Ninth Circuit panel's opinion found that there was not a likelihood of success on any of the constitutional claims, devoting most of its analysis to dormant commerce clause doctrine.  The panel first rejected the argument that the franchise regulation expressly discriminated against franchises as interstate commerce and was thus not "facially neutral." The panel also rejected the argument that the Seattle provision had a discriminatory purpose, noting that while there was some evidence that some persons involved in considering the issue were critical of franchise employment practices, even the strongest evidence of this (in an email), did not show that even this person "intended to burden out-of-state firms or interfere with the wheels of interstate commerce," and "[m]ore importantly, they also do not show that City officials wished to discriminate against out-of- state entities, bolster in-state firms, or burden interstate commerce."  Lastly, the panel rejected the argument that the Seattle provision discriminatory effects, agreeing with the district judge that the United States Supreme Court's decisions on dormant commerce clause can be "difficult to reconcile" and noting:

 We lack Supreme Court authority assessing whether a regulation affecting franchises ipso facto has the effect of discriminating against interstate commerce. Nor has the Supreme Court addressed whether franchises are instrumentalities of interstate commerce that cannot be subjected to disparate regulatory burdens. While regulations that expressly classify based on business structure or impose disparate burdens on franchises present interesting questions, our review is limited to considering whether the district court applied improper legal principles or clearly erred in reviewing the record.

 The footnote to this paragraph includes an extensive citation to lower courts that have considered the issue of whether measures that affect national chains violate the dormant Commerce Clause.  The Ninth Circuit panel concluded:

[T]he evidence that the ordinance will burden interstate commerce is not substantial. It does not show that interstate firms will be excluded from the market, earn less revenue or profit, lose customers, or close or reduce stores. Nor does it show that new franchisees will not enter the market or that franchisors will suffer adverse effects.

The Ninth Circuit panel dispatched the Equal Protection Clause claim much more expeditiously.  The Ninth Circuit applied the lowest form of rational basis scrutiny  - - - citing F.C.C. v. Beach Commc’ns, Inc. (1993) sometimes called "anything goes" rational basis - - - and finding there was a legitimate purpose (without animus) and the law was reasonably related to that purpose.

The court's discussion of the First Amendment claim was similarly brief, not surprising given that the court found the Speech Clause's threshold requirement of "speech"  was absent: "Seattle’s minimum wage ordinance is plainly an economic regulation that does not target speech or expressive conduct."

Additionally, the court agreed with the district judge that there was no preemption under the Lanham Act and no violation of the Washington State Constitution.

The Ninth Circuit panel did disagree with the district judge regarding some minor aspects of the non-likelihood to prevail on the merits preliminary injunction factors.  But on the whole, the opinion is a strong rebuke to the constitutional challenges to the Seattle laws.

Given the stakes (and the attorneys for the franchisers) a petition for certiorari is a distinct possibility.  Meanwhile, as we suggested when the case was filed, for ConLawProfs looking for a good exam review or exam problem, International Franchise Ass'n v. Seattle has much potential.

September 28, 2015 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech, State Constitutional Law, Supreme Court (US), Teaching Tips | Permalink | Comments (0)

Wednesday, September 2, 2015

D.C. Circuit Denies Attorneys' Fees to Shelby County

The D.C. Circuit today denied attorneys' fees to Shelby County growing out of its successful challenge to the coverage formula for preclearance in the Voting Rights Act. But more importantly: A majority on the panel rejected Shelby County's states' rights interpretation of the VRA.

The case arose out of Shelby County's motion for attorneys' fees after the Supreme Court struck Section 4 of the VRA, the coverage formula for preclearance, in Shelby County v. Holder. The VRA fee-shifting provision says,

In any action or proceeding to enforce the voting guarantees of the [F]ourteenth or [F]ifteenth [A]mendment, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable [attorneys'] fee, reasonable expert fees, and other reasonable litigation expenses as part of the costs.

But to win attorneys' fees, Shelby County had to show (1) that it was eligible for fees under the provision and (2) that it was entitled to them under Newman v. Piggie Park.

All three on the panel agreed that Shelby County wasn't entitled under Piggie Park. That's because "Shelby County's lawsuit did not facilitate enforcement of the VRA; it made enforcing the VRA's preclearance regime impossible." "Shelby County's argument boils down to the proposition that Congress introduced the fee-shifting provision into the VRA in 1975 with the express goal of inducing a private party to bring a lawsuit to neuter the Act's central tool. But that makes no sense." (Emphasis in original.) That was enough to deny attorneys' fees.

But that's also where the case gets interesting. On the eligibility prong, Shelby County argued that it was eligible for fees under the statute, because it prevailed in an action to enforce the voting guarantees of the Fourteenth and Fifteenth Amendments, and that these guarantees include "the structural rights of the states." That last part is a bold departure from the plain language of the amendments and any cases interpreting them; it assumes that the amendments contain some (unenumerated) version of states' rights, which, in turn, could limit the amendments' protection of individual voting rights.

The court left that question open. Judge Griffith, writing for the court, dodged it by relying only on the Piggie Park prong. Judge Silberman, in concurrence, seemed (more or less) to agree (at least on this point). Only Judge Tatel specifically took on Shelby County's reading. Judge Tatel wrote that the question was simple: "Obviously, neither of these [amendments] includes any guarantees of state autonomy over voting. . . . The two Amendments thus 'guarantee' not state autonomy, but rather the right of citizens to vote, and they expressly guarantee that right against state interference."

The upshot is that the court appears to have left Shelby County's states' rights interpretation of the Fourteenth and Fifteenth Amendments on the table, an open question. This means that the Supreme Court could step in and answer it--it Shelby County's favor. (And given the Court's states' rights approach in the original case, this seems like a possibility.)

Still, the court's reasoning on Piggie Park is extremely thorough, and seems written to insulate the ruling against Supreme Court reversal.


September 2, 2015 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News | Permalink | Comments (0)

Thursday, August 27, 2015

Sixth Circuit Refuses Stay in Kentucky Court Clerk Case

The Sixth Circuit's brief  Order in Miller v. Davis refused to stay the district court's preliminary injunction mandating that a court clerk in Kentucky issue same-sex marriage licenses (or any marriage licenses) despite her claim of free exercise of religion.

Here's the essence of the Sixth Circuit panel opinion:

The request for a stay pending appeal relates solely to an injunction against Davis in her official capacity. The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court. There is thus little or no likelihood that the Clerk in her official capacity will prevail on appeal.



This should be the end of this litigation?

August 27, 2015 in Current Affairs, Family, First Amendment, Fourteenth Amendment, Opinion Analysis, Sexual Orientation | Permalink | Comments (1)

Monday, August 24, 2015

Seventh Circuit Finds No Valid Constitutional Claims in School Bullying Lawsuit

Affirming the district court's grant of summary judgment in favor of the schools, the Seventh Circuit's brief opinion today in D.S. v. East Porter County Schools Corporation is an illustration of the difficulty of succeeding with constitutional claims based on bullying, even when claims of school officials participation are included.

"Dealing with Bullies" artwork by Karbo via

In considering the Due Process claim, the unanimous Seventh Circuit panel began with the principle that the Due Process Clause "generally does not impose upon the state a duty to protect individuals from harm by private actors," predictably citing DeShaney v. Winnebago Cty. Dep’t of Soc. Servs.(1989).  The court noted that there are two exceptions: special relationship and state-created danger.  The plaintiff argued that the school officials created the risk - - - or increased the risk - - - that she would be bullied, but the court found that the record did not support a finding that the school officials' conduct met the "requisite level of egregiousness" to satisfy the claim.

In considering the Equal Protection Clause claim, the court stated that the plaintiff must show that the schools "acted with a nefarious discriminatory purpose and discriminated against her based on her membership in a definable class."  Unlike the landmark Seventh Circuit case of  Nabozny v. Podlesny (7th Cir. 1996), which the court cites here, the plaintiff does not rely on sexual orientation or any other "protected class," but proceeded on a "class-of-one" theory.  The court found the plaintiff "failed to identify any similarly situated individuals who were treated differently." 

Without a valid Due Process Clause or Equal Protection Clause claim under the Fourteenth Amendment, the court found there was no underlying constitutional violation on which the plaintiff could proceed.

August 24, 2015 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0)

Monday, August 3, 2015

District Judge Holds Idaho's Ag-Gag Law Unconstitutional

Chief Judge B. Lynn Winmill for the United States District of Idaho today held Idaho's so-called "Ag-Gag" law, Idaho Code § 18-7042, unconstitutional in his  opinion in Animal Defense League v. Otter.  Judge Winmill found that the law violated both the First Amendment and the Equal Protection Clause.

The Idaho statute creates a new crime, “interference with agricultural production.” I.C. 18-7042. A person commits the crime of interference with agricultural production if the person knowingly:

(a) is not employed by an agricultural production facility and enters an agricultural production facility by force, threat, misrepresentation or trespass;

(b) obtains records of an agricultural production facility by force, threat, misrepresentation or trespass;

(c) obtains employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility's operations . . .

(d) Enters an agricultural production facility that is not open to the public and, without the facility owner's express consent or pursuant to judicial

process or statutory authorization, makes audio or video recordings of the conduct of an agricultural production facility's operations; or

(e) Intentionally causes physical damage or injury to the agricultural production facility's operations, livestock, crops, personnel, equipment, buildings or premises.

Chief Judge Winmill described the legislative history including statements that compared animal rights investigators to “marauding invaders centuries ago who swarmed into foreign territory and destroyed crops to starve foes into submission.”  However, for Winmill, there is a better comparison:

450px-The_Jungle_by_Upton_SinclairThe story of Upton Sinclair provides a clear illustration of how the First Amendment is implicated by the statute. Sinclair, in order to gather material for his novel, The Jungle, misrepresented his identity so he could get a job at a meat-packing plant in Chicago. William A. Bloodworth, Jr., UPTON SINCLAIR 45–48 (1977). Sinclair’s novel, a devastating exposé of the meat-packing industry that revealed the intolerable labor conditions and unsanitary working conditions in the Chicago stockyards in the early 20th century, “sparked an uproar” and led to the passage of the Federal Meat Inspection Act, as well as the Pure Food and Drug Act. National Meat Ass'n v. Harris, 132 S.Ct. 965 (2012). Today, however, Upton Sinclair’s conduct would expose him to criminal prosecution under § 18-7042.

On the First Amendment challenge, the judge found that Idaho's ag-gag statute is content based and merits strict scrutiny.  The opinion revisits an earlier ruling so concluding to reiterate that the United States Supreme Court's opinion in United States v. Alvarez ("the stolen valor case").  Judge Winmill notes that any deception involved in the ag-gag violation would be not be harmful: "the most likely harm that would stem from an undercover investigator using deception to gain access to an agricultural facility would arise, say, from the publication of a story about the facility, and not the misrepresentations made to gain access to the facility."  And "harm caused by the publication of true story is not the type of direct material harm that Alvarez contemplates."  The judge also held that the recording provision is content-based.

Moreover, Judge Winmill implicitly determines that the law is viewpoint-based:

a review of § 18-7042’s legislative history leads to the inevitable conclusion that the law’s primary purpose is to protect agricultural facility owners by, in effect, suppressing speech critical of animal-agriculture practices.

Not surprisingly, the statute does not survive strict scrutiny.  The judge is skeptical that the "property and privacy interests of agricultural production facilities" are sufficiently compelling given that food production is a heavily regulated industry.  Even if the interests were compelling, however, the statute was not narrowly tailored:

Criminal and civil laws already exist that adequately protect those interests without impinging on free-speech rights. It is already illegal to steal documents or to trespass on private property. In addition, laws against fraud and defamation already exist to protect against false statements made to injure or malign an agricultural production facility.

The judge thus concludes that the law restricts more speech than is necessary to achieve its goals.

On the Equal Protection Clause issue, the court's conclusion does not depend on a strict scrutiny analysis.  The judge finds that the ag-gag statute cannot satisfy even rational basis review.  First, Judge Winmill finds that that state's purported interest is not legitimate:

The State argues that agricultural production facilities deserve more protection because agriculture plays such a central role in Idaho’s economy and culture and because animal production facilities are more often targets of undercover investigations. The State’s logic is perverse—in essence the State says that (1) powerful industries deserve more government protection than smaller industries, and (2) the more attention and criticism an industry draws, the more the government should protect that industry from negative publicity or other harms. Protecting the private interests of a powerful industry, which produces the public’s food supply, against public scrutiny is not a legitimate government interest.

 Second, the judge finds that the actual interest is a “a bare congressional desire to harm a politically unpopular group" and thus  "cannot constitute a legitimate governmental interest if equal protection of the laws is to mean anything,” quoting and relying on U. S. Dept. of Agriculture v. Moreno (1973).  "As a result, a purpose to discriminate and silence animal welfare groups in an effort to protect a powerful industry cannot justify the passage" of the statute.

Judge Winmill's decision is ground-breaking.  So-called "ag-gag" laws have proliferated and are being challenged, usually on First Amendment grounds.  Undoubtedly the state will appeal and the Ninth Circuit will have a chance to decide whether  Judge Winmill was correct that the Idaho law is similar to the day labor solicitation prohibition in Arizona's SB1070 that the Ninth Circuit held unconstitutional in Valle Del Sol Inc. v.Whiting.

 UPDATE: Check out this analysis by ConLawProf Shaakirrah Sanders over at casetext and her pre-decision discussion about the case with Idaho Public Radio.

August 3, 2015 in Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Thursday, July 2, 2015

Obergefell, Federalism, and Religion: Constitutional Issues Raised in Alabama and Texas

After the United States Supreme Court's opinion in Obergefell v. Hodges on June 26 declaring that states are required by the Fourteenth Amendment to issue same-sex marriage licenses, a few state officials have not only voiced objections to the decision, but have voiced resistance to complying with the Court's declaration. 

The situations in Alabama and Texas have been the most contentious.


ALABAMA:     Recall that earlier this year when federal District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage, the reaction of  Alabama Supreme Court's controversial Chief Judge Roy Moore was an unusual letter to the Governor objecting to the federal judge's opinion on the basis that federal courts have no power in this Biblical area.  This was followed by an opinion of the Alabama Supreme Court ordering judges not to issue same-sex marriage licenses. The Eleventh Circuit, and then the United States Supreme Court denied a stay of the district judge's opinion.

When the Court took certiorari in Obergefell, however, Judge Granade stayed her order.

However, after the Court decided Obergefell, the Alabama Supreme Court's  "corrected order" stated that because the US Supreme Court rules allow parties 25 days to file a petition for rehearing, the parties in the case - - - including two conservative Alabama organizations - - - were invited to submit briefs on the effect of Obergefell.  Federal District Judge Callie Granade issued a one-page Order on July 1, referenced her earlier stay and then stated:

The United States Supreme Court issued its ruling on June 26, 2015. Obergefell v. Hodges, 576 U.S. ____ (2015). Accordingly, by the language set forth in the [previous] order, the preliminary injunction is now in effect and binding on all members of the Defendant Class.

Thus, the officials of Alabama are subject to a direct order by a federal judge.

 TEXAS:   The Attorney General of Texas, Ken Paxton, who is reportedly facing criminal charges on unrelated matters, issued a six page opinion letter a few days after Obergefell which stressed the individual religious rights of county clerks and their employees, as well as justices of the peace and clergy, regarding their participation in same-sex marriages.  Paxton's opinion was widely reported and concluded that county clerks retain religious freedoms that "may allow" accommodations depending "on the particular facts of each case."  Paxton relied on the First Amendment as well as Texas's Religious Freedom Restoration Act (RFRA), essentially similar to the federal RFRA at issue in the Court's decision in Hobby Lobby. This is not unique:  the possibility of claims by individual public employees in clerk's offices was also raised after New York passed its Marriage Equality Act in 2011 and as that act made clear - - - as is generally understood - - - that religious officers have complete discretion in agreeing or refusing to solemnize marriages. 

The Fifth Circuit issued a very brief opinion on July 1, noting that "both sides now agree" that the  the injunction appealed from, originally issued in early 2014 by federal district judge Orlando Garcia in DeLeon v. Perry [now Abbott],  "is correct in light of Obergefell," the Fifth Circuit ruled that the preliminary injunction is affirmed. 

The Fifth Circuit's opinion makes clear - - - seemingly with state agreement - - - that Texas is bound by Obergefell, but does not mention individual religious accommodations. 

In both the Alabama and Texas situations, there are echoes of resistance to the Supreme Court's opinion in Brown v. Board of Education; The Supremacy Clause and the Court's opinion in Cooper v. Aaron seem to answer the question of whether state officials simply may disagree with the Court's interpretation of the Constitution.  This is true despite the dissenting opinions in Obergefell itself which argued that the Court should leave the resolution of same-sex marriage to individual states.  The question of religious accommodations may be a closer one, but what seems clear is that if there is indeed an individual right to be accommodated - - - again, that itself is unclear - - - it cannot be a right of a government entity.  While Hobby Lobby may have held that corporations have religious freedoms, it is hard to conceive of government entities having free exercise rights in a manner that does not violate the Establishment Clause.

July 2, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0)

Monday, June 29, 2015

Court Rejects Challenge to OK Lethal Injection

The Supreme Court in Glossip v. Gross rejected an Eighth Amendment challenge to Oklahoma's three-drug lethal injection cocktail. The ruling deals a blow to opponents of the death penalty and leaves in place a protocol that's resulted in a spate of gruesome and botched executions. It also means that the plaintiffs' executions will move forward under Oklahoma's protocol.

The case was important, because victory for the challengers would have left states with few, if any, viable and sustainable options for administering lethal injection--and may have marked the de facto beginning of the end of the death penalty. (That's why some states have explored other methods of execution recently.) But there was no victory for the challengers, so the ruling allows states to move forward with a popular, but deeply flawed, cocktail.

If the past is any indicator, opponents of the death penalty will now work outside the courts to get suppliers of Oklahoma's new drug to stop providing it to states that use it for lethal injections--the same strategy they used to force Oklahoma to turn to a new protocol in the first place. And if the past is any indicator, they'll be successful, which might, in turn, lead to the next protocol and the next challenge.

We posted on the oral arguments here.

Challengers argued that Oklahoma's use of the sedative midazolam as the first drug did not reliably induce and maintain a deep, coma-like unconsciousness that would render a person insensate to the excruciating pain caused by the second and third drugs (which paralyze and cause cardiac arrest, respectively). Oklahoma turned to midazolam after suppliers for the state's previous first drugs dried up.

Justice Alito wrote for the Court, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas. Justice Alito wrote that the challengers didn't show that the state's use of midazolam created a demonstrated risk of severe pain, substantial compared to alternatives, and that they didn't identify a viable alternative. Justice Alito credited the district court's factual findings as to midazolam's ability to stop pain, and wrote that the district court didn't clearly err in finding that alternative drugs (the state's old drugs) were unavailable.

Justice Sotomayor wrote the principal dissent, joined by Justices Ginsburg, Breyer, and Kagan. She argued that the district court erred in crediting the state's expert and in putting the burden on the challengers to identify a viable alternative to the state's use of midazolam.

Justice Breyer dissented, joined by Justice Ginsburg, and argued that the Court should entirely reevaluate the constitutionality of the death penalty. Justices Scalia and Thomas each wrote concurrences addressing Justice Breyer's points.

June 29, 2015 in Cases and Case Materials, Fourteenth Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (1)

Monday, June 22, 2015

Court Sets Objective Standard for Pretrial Detainee Civil Rights Action

The Supreme Court ruled today in Kingsley v. Hendrickson that a pretrial detainee need only show that an officer's use of force was objectively unreasonable--and not subjectively unreasonable, a higher standard--in order to prevail on an excessive force claim. The ruling reverses the Seventh Circuit, which affirmed a trial judge's jury instruction that set the bar at the higher subjective standard, and remands the case for an application of the lower objective standard.

The ruling means that a pretrial detainee's burden in an excessive force claim is lower than the standard upheld by the Seventh Circuit. That's good news for pretrial detainees who bring civil rights claims. But the Court was quick to say that a detainee still has other hurdles to jump--including qualified immunity.

Justice Breyer wrote for the Court, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Breyer wrote that the trial court's jury instruction based on a subjective standard--that "[e]xcessive force means force applied recklessly that is unreasonable in light of the facts and circumstances [and]  [d]efendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiff's safety . . . ."--should have been been based on an objective standard--that "the force purposely or knowingly used against him was objectively unreasonable."

Justice Scalia wrote the principal dissent for himself, Chief Justice Roberts, and Justice Thomas. Justice Alito also dissented, arguing that the case should be dismissed as improvidently granted.

June 22, 2015 in Cases and Case Materials, Fourteenth Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0)

Thursday, June 18, 2015

Sign Ordinance Violates First Amendment: Court Decides Reed v. Town of Gilbert

A unanimous Court, albeit with separate opinions, concluded that the extensive municipal signage regulations violated the First Amendment in Reed v. Town of Gilbert.

Recall from oral arguments that the town's regulations generally required a permit to erect a sign, with nineteen different exemptions including “Temporary Directional Signs Relating to Qualifying Event.”  The exemption for these temporary directional signs further specifies that such signs "shall be no greater than 6 feet in height and 6 square feet in area,”and “shall only be displayed up to 12 hours before, during and 1 hour after the qualifying event ends.” Although the challenge involves a church sign, this was largely irrelevant. Instead the content at issue is the sign’s directional nature, if indeed "directions" is a matter of content. In a divided opinion the Ninth Circuit upheld the town Gilbert signregulation as content neutral.

Reversing the Ninth Circuit, Justice Thomas, writing for the Court, concluded that the Sign Code was content-based and did not survive strict scrutiny.  The Sign Code provision is content-based because, simply put, to determine if a sign is a "Temporary Directional Sign" one must determine whether the sign "conveys the message of directing the public" to an event.  It does not matter, Thomas writes for the Court, that the content may seem neutral:

A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech. *** In other words, an innocuous justification cannot transform a facially content- based law into one that is content neutral.

Once the Court decided there the regulation was subject to strict scrutiny, there was little doubt that the town would not be able to satisfy the standard.  Thomas assumed that the proffered governments interests of aesthetics and traffic safety were compelling, but quickly determined that that the manner in which they were being served was far from narrowly tailored. Instead, the regulations were "hopelessly underinclusive."

The concurring opinions take on the issue raised in oral argument about the constitutionality of any town's attempt to regulate signage.  Justice Kagan's concurring opinion, joined by Justice Ginsburg and by Breyer (who also has a separate concurring opinion) - - - but not by Justice Alito, who has his own brief concurrence, joined by Kennedy and Sotomayor (who also join the Thomas's opinion for the Court)- - - argues that strict scrutiny is not appropriate for all sign ordinances.  Kagan states:

Although the majority insists that applying strict scrutiny to all such ordinances is “essential” to protecting First Amendment freedoms,  I find it challenging to understand why that is so. This Court’s decisions articulate two important and related reasons for subjecting content-based speech regulations to the most exacting standard of review. The first is “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” McCullen v. Coakley. The second is to ensure that the government has not regulated speech “based on hostility—or favoritism— towards the underlying message expressed.” R. A. V. v. St. Paul (1992). Yet the subject-matter exemptions included in many sign ordinances do not implicate those concerns. Allowing residents, say, to install a light bulb over “name and address” signs but no others does not distort the marketplace of ideas. Nor does that different treatment give rise to an inference of impermissible government motive.

She instead argues that the "we may do well to relax our guard so that 'entirely reasonable' laws imperiled by strict scrutiny can survive."  But it was evident that even the concurring Justices  did not view the Town of Gilbert's signage regulations as entirely reasonable.

June 18, 2015 in First Amendment, Fourteenth Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Wednesday, April 29, 2015

Federal Judge Finds Pennsylvania's "Revictimization Act" Unconstitutional

In a well-crafted but hardly surprising opinion in Abu-Jamal v. Kane, Chief Judge Christopher Conner of the Middle District of Pennsylvania concluded that Pennsylvania's "Revictimization Relief Act" is unconstitutional.

Recall that Act provided:

In addition to any other right of action and any other remedy provided by law, a victim of a personal injury crime may bring a civil action against an offender in any court of competent jurisdiction to obtain injunctive and other appropriate relief, including reasonable attorney fees and other costs associated with the litigation, for conduct which perpetuates the continuing effect of the crime on the victim.

At the time of signing, it was clear that the Act was primarily directed at Mumia Abu-Jamal; Abu-Jamal brought suit soon after the Act was passed; another challenge was brought by Prison Legal News and consolidated.

Judge Conner began his opinion by noting that the First Amendment does not "evanesce" at the prison gate, and ended it by stating that the First Amendment does not "evanesce at any gate." (emphasis in original).   In applying well-settled First Amendment doctrine, Judge Conner focused on both  Simon & Schuster v. Crime Victims Board (1991) (holding unconstitutional the so-called "Son of Sam" law) and Snyder v. Phelps (2011) (essentially holding that free speech trumped the tort of intentional infliction of emotional distress).  Judge Conner easily rejected the State's argument that the statute regulated "conduct" - - - which is, after all, the word in the statute and which would merit lower scrutiny - - - noting that:

throughout its brief legislative gestation, the law was championed primarily as a device for suppressing offender speech.  The Act's sponsor extolled its capacity to silence Abu-Jamal in particular.  The chairman of the house judiciary committee opined that the Act would end the "extreme distress" suffered by victims when offenders achieve celebrity, admonishing Goddard College for providing a "cold blooded murderer" [Abu-Jamal] with a speaking forum.

 (emphasis in original; citations to Stipulation omitted).  As a content-regulation, the Act "instantly fails" the exacting scrutiny standard according to Judge Conner.

In addition to the content-restriction fatality, Judge Conner found that the Act was impermissibly vague and substantially overbroad as those doctrines are derived from due process.  The Act's "central limitation" turns on the unknowable emotive response of victims, which a person cannot determine "short of clairvoyance."   Moreover, the Act applies to "offenders," a term the statute does not define, and which could presumably apply to a wide swath of persons, including non-offender third parties who publish statements by offenders.  Relatedly, the overbreadth defect of the Act concerned the judge:

[T]he Act ostensibly affects protected - - - and critically important - - - speech, including: pardon applications, clemency petitions, and any testimony given in connections with those filings; public expressions of innocence, confessions, or apologies; legislative testimony in support of improved prison conditions and reformed juvenile justice systems; programs encouraging at-risk youth to avoid lives of crime; or any public speech or written work whatsoever, regardless of the speaker's intention or the work's relation to the offense.

In other words, if the victim can demonstrate "mental anguish," the statute would be satisfied.  And, combined with the broad notion of "offender," taken to its "logical conclusion," the Act would "limit an accused person's right to profess his innocence before proven guilty."

Pennsylvania would be wise not to appeal this judgment.  It would have even been more wise if the legislature had not passed - - - and the Governor had not signed - - - such a patently unconstitutional statute last year.

Would the PA Act have covered MLK's famous publication?


April 29, 2015 in Books, Criminal Procedure, Current Affairs, Due Process (Substantive), First Amendment, Fourteenth Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 28, 2015

Supreme Court Hears Same-Sex Marriage Arguments in Obergefell v. Hodges

The Court today heard oral arguments in two parts in the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans.   There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.

For oral argument on the first certified question - - -does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? - - - Mary Bonauto argued for the Petitioners; Solicitor Donald Verrilli argued for the United States as amicus curiae supporting Petitioners; and John Bursh, as Special Assistant Attorney for Michigan argued for Respondents. 

For oral argument on the second certified question - - - does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? - - -Douglas Hallward-Driemeier argued for Petitioners and Joseph Whalen, Associate Solicitor General of Tennessee, argued for Respondents.

The Court and the advocates acknowledged that the second question is only reached if the first question is answered in the negative: Justice Ginsburg and Justice Kagan both posited this principle with Hallward-Driemeier and Whalen, respectively, agreeing. Chief Justice Roberts noted that" we only get to the second question if you've lost on that point already, if we've said States do not have to recognize same-­sex marriage as a marriage," and later raised the issue of whether the second question made practical sense:

It certainly undermines the State interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere. It'd simply be a matter of time  until they would, in effect, be recognizing that within the State.


Donkey Hotey via

 The themes of the oral arguments held no surprising issues:

Is a same-sex marriage decision by the Court premature?  Interestingly, Justice Kennedy pointed out that it is "about the same time between Brown and Loving as between Lawrence and this case. It's about 10 years." 

Should it be the Court or the states that should decide?  The question of the proper role of judicial review has long preoccupied the courts in the context of same-sex marriage. Justice Scalia raised this issue several times, but when John Bursh raised it on behalf of Michigan, Justice Kagan responded that "we don't live in a pure democracy; we live in a constitutional democracy."

Is the race analogy apt?  Bursch distinguished Loving (as well as Turner v. Safley and Zablocki v. Redhail) because previous cases involved man-woman marriage and  "States' interest in linking children to their biological" parents.

Is there a slippery slope?  What about polygamous and incestuous marriages?  What about age of consent laws?

What about religious freedom?  How do we know that ministers won't be forced to perform "gay marriages"?

Should the case be resolved on Equal Protection or Due Process?  Justice Kennedy asked General Verrilli about Glucksberg,   Verrilli replied:

  1. GENERAL VERRILLI: Justice Kennedy, forgive me for answering the question this way. We do recognize that there's a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven't made the fundamental rights argument under Glucksberg. And therefore, I'm not sure it would be appropriate for me not having briefed it to comment on that.

  2. JUSTICE KENNEDY: Well, can you tell me why you didn't make the fundamental argument?

  3. GENERAL VERRILLI: Well, because we think ­­well, because we think while we do see that there is, of course, this profound connection, we do think that for reasons like the ones implicit in the Chief Justice's question, that this issue really sounds in equal protection, as we understand it, because the question is equal participation in a State conferred status and institution. And that's why we think of it in equalprotection terms

As an equal protection case, it is one about sexual orientation or sex discrimination?  One of the more interesting questions was posed by Chief Justice Roberts to Bursch:

Counsel, I'm ­­ I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?

How is the state's interest in procreation related to the ban on same-sex marriage?  Justice Ginsburg, as well as others, posed questions about the elderly not being barred from marriage.
Is marriage a changing institution or is a constant for millennia?  Justice Ginsburg predictably noted that marriage was once "a dominant and a subordinate relationship," with women being subordinate, while Chief Justice Roberts disputed the fact that women's subordination (or coverture) was a universal aspect of marriage.
Does the Full Faith and Credit Clause, Article IV, guarantee a state will recognize another state's marriage?  Justice Scalia noted he was "glad" to be able to quote Article IV, "a portion of the Constitution that actually seems to be relevant," although there remained a lack of clarity in its applications.  Is a marriage a public act?  record?  judgment? 

The open question is whether the Court's opinion will be as predictable as the questions.

April 28, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Full Faith and Credit Clause, Fundamental Rights, Oral Argument Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Friday, April 24, 2015

Ninth Circuit Upholds Arizona's Voter Registration Form for Party Preference

Before 2011, Arizona law required that voter registration forms include a blank space for the registrant’s party preference.  But a 2011 law required the voter registration form distributed by the Arizona Secretary of State to list the two largest parties (as measured by number of registered voters) on the form, as well as provide a blank line for “other party preferences.” Ariz. Rev. Stat. § 16-152(A)(5).

In response to the amendment, the Arizona Secretary of State revised box 14 on the Registration Form, and the opinion includes this illustration:


Arizona_registrationMinority parties Arizona Green Party and the Arizona Libertarian Party challenged the new law as violative of their First and Fourteenth Amendment rights.  In its opinion in Arizona Libertarian Party v. Bennett, the Ninth Circuit upheld the statute as constitutional.

The panel majority opinion by Judge Tashima noted the intertwining of the equality and First Amendment claims:

“Restrictions on voting can burden equal protection rights as well as ‘interwoven strands of liberty’ protected by the First and Fourteenth Amendments—namely, the ‘right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.’”

It stated that the party challenging the law bears “the initial burden of showing that [the state’s] ballot access requirements seriously restrict the availability of political opportunity" and that here any burden was de minimis.  The panel thus applied rational basis scrutiny which the new form easily passed.

Concurring, Judge McKeown argued that the rational basis review burden-shifting standards derived from Ninth Circuit precedent and which the majority applied were "inconsistent with the Supreme Court’s approach to analyzing voting rights challenges." Instead, the court should apply the balancing tests articulated in Burdick v. Takushi (1992) and reiterated in Crawford v. Marion County Election Board (2008), although Judge McKeown acknowledged that the "semantic distinction between the balancing test and the rational basis standard" may make little difference in most cases.  Indeed, here Judge McKeown recognized that Arizona's asserted interests in reducing printing costs and easing administrative efficiency are “sufficiently weighty to justify” the speculative burden on the plaintiff minority parties' rights.


April 24, 2015 in Association, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, April 16, 2015

Guide to the Amicus Briefs in Obergefell v. Hodges: The Same-Sex Marriage Cases

The United States Supreme Court is set to hear oral arguments on April 28 in the same-sex marriage cases, now styled as Obergefell v. Hodges, a consolidated appeal from the Sixth Circuit’s decision in DeBoer v. Snyder, reversing the district court decisions in  Kentucky, Michigan, Ohio, and Tennessee that had held the same-sex marriage bans unconstitutional, and creating a circuit split.    

 Recall that the Court certified two questions:

    1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

    2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? 

The case has attracted what seems to be a record number of amicus briefs.  As we discussed last year, previous top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92.  [Note that the "Obamacare" Affordable Care Act cases including 2012's consolidated cases of  NFIB v. Sebelius attracted 136 amicus briefs.]

The count for Obergefell v. Hodges stands at  139. 147  [updated: 17 April 2015]  149 [updated]  LINKS TO ALL THE BRIEFS ARE AVAILABLE ON THE ABA WEBSITE HERE.

 76  77 amicus briefs support the Petitioners, who contend that same-sex marriage bans are unconstitutional.

58 66 67 amicus briefs support the Respondents, who contend that same-sex marriage bans are constitutional.

05 amicus briefs support neither party (but as described below, generally support Respondents).

According to the Rules of the Supreme Court of the United States, Rule 37, an amicus curiae brief’s purpose is to bring to the attention of the Court “relevant matter not already brought to its attention by the parties.”  While such a brief “may be of considerable help to the Court,” an  “amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”

 An impressive number of the Amicus Briefs are authored or signed by law professors.  Other Amici include academics in other fields, academic institutions or programs, governmental entities or persons, organizations, and individuals, often in combination.  Some of these have been previously involved in same-sex marriage or sexuality issues and others less obviously so, with a number being religious organizations. Several of these briefs have been profiled in the press; all are linked on the Supreme Court’s website and on SCOTUSBlog.

Here is a quick - - - if lengthy - - - summary of the Amici and their arguments, organized by party being supported and within that, by identity of Amici, beginning with briefs having substantial law professor involvement, then government parties or persons, then non-legal academics, followed by organizations including religious groups, and finally by those offering individual perspectives.  [Late additions appear below]Special thanks to City University of New York (CUNY)  School of Law Class of 2016 students, Aliya Shain & AnnaJames Wipfler, for excellent research.


Continue reading

April 16, 2015 in Courts and Judging, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Foreign Affairs, Fourteenth Amendment, Free Exercise Clause, Full Faith and Credit Clause, Fundamental Rights, Gender, History, Interpretation, Privacy, Profiles in Con Law Teaching, Race, Recent Cases, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US), Theory | Permalink | Comments (3)

Friday, March 20, 2015

Puerto Rico Decides Not to Contest Constitutional Challenge to Same-Sex Marriage Ban

In a brief filed today in the First Circuit in Conde-Vidal v. Armendariz, the Solicitor General of the Commonwealth of Puerto Rico essentially sided with the appellants and conceded its same-sex marriage ban is unconstitutional.

Recall that several months ago, United States District Judge for the District of Puerto Rico Juan Perez-Gimenez  dismissed the constitutional challenge to Puerto Rico's law defining marriage as "man and woman" and refusing recognition to marriages "between persons of the same sex or transexuals." In large part, Judge Perez-Gimenez relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question."

The challengers appealed to the First Circuit and the Commonwealth's brief "concedes that Baker’s rationale that federal courts lack jurisdiction to entertain these claims for lack of a substantial federal question can no longer be deemed good law." 

800px-Flag_of_Puerto_Rico_(Light_Blue).svgIndeed, the Commonwealth's brief concedes that the appellants should prevail.  The brief concludes:

It is not usual for the Executive Branch of the Commonwealth of Puerto Rico to refuse to defend the constitutionality of legally-enacted statutes. It is even less usual to adopt a somewhat different position at the appellate level than the one espoused before the lower court. But this is not a usual case and neither the law nor common sense requires us to treat it as such.

In a constitutional democracy there are some rights that have been reserved to the People directly and which no government may infringe, regardless of individual or personal views on the matter. “Our obligation [like this Court’s] is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).

Article 68 of the Civil Code of Puerto Rico excludes LGBT couples from the legal entitlements and rights attendant to civil marriage. Thus, the Commonwealth of Puerto Rico acknowledges that the statute in controversy raises substantial constitutional questions anent the constitutional guarantees of equal protection of the laws and substantive due process.

Because Puerto Rico’s marriage ban impermissibly burdens Plaintiffs ́ rights to the equal protection of the laws and the fundamental right to marry, we have decided to cease defending its constitutionality based on an independent assessment about its validity under the current state of the law. However, “i[t] is emphatically the province and duty of the judicial department to say what the law is.” Windsor, 133 S.Ct. 2675, at 2688 (quoting Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1802)), and, since the District Court entered judgment in this case, it is this particular Court’s duty to review the legal conclusions there reached so that they may be brought up to date in accordance with newer developments in this important area of constitutional law.

If History has taught us anything, it is that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence, 579 U.S. at 579. This case represents but another attempt from a politically disadvantaged group of our society to be included within the full scope of the legal and constitutional protections that most of us take for granted. Plaintiffs seek no preferential treatment; only equality. The Executive Branch of the Commonwealth recognizes the LGBT community’s right to equality under the law.

Defendants-Appellees request that this Honorable Court reverse the Judgment of the District Court that dismissed Plaintiffs-Appellants’ complaint for lack of a substantial federal question.

Given this concession, the First Circuit - - - which has not had occasion to rule on a challenge to a "state" same-sex marriage ban - - - is sure to find that Puerto Rico's same-sex marriage ban is unconstitutional, assuming it reaches the issue before the United States Supreme Court decides the issue in the cases presently before it. 

Recall that the First Circuit did rule that DOMA, the Congressional statute barring federal recognition of same-sex marriage, was unconstitutional in 2012, before the  United States Supreme Court held DOMA unconstitutional in United States v. Windsor, but after the United States Attorney General, Eric Holder, announced the Department of Justice would not defend the constitutionality of DOMA. 

March 20, 2015 in Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Interpretation, News, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)