Tuesday, March 3, 2015
In a per curiam opinion in excess of 130 pages, the Alabama Supreme Court has ordered certain probate judges to 'discontinue the issuance of marriage licenses to same-sex couples' in compliance with a district judge's order and a denial of a stay by the United States Supreme Court.
[UPDATED: Reports state that the controversial Chief Justice Roy Moore recused himself from the ruling, but neither Moore nor recusal seems to be mentioned in the opinion]. The Alabama Supreme Court's opinion per curiam opinion states that "Stuart, Bolin, Parker, Murdock, Wise, and Bryan, JJ., concur," and that "Main, J., concurs in part and concurs in the result," and that "Shaw, J., dissents." Chief Justice Moore is the ninth of the nine justices of the Alabama Supreme Court (pictured below).
The case is styled Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County; In re: Alan L. King, in his official capacity as Judge of Probate for Jefferson County, et al., and is an Emergency Petition for Writ of Mandamus. Justice Greg Shaw's dissent highlights the unusual procedural posture of the case: he concludes that the Alabama Supreme Court does not have original jurisdiction, that the public interest groups (Alabama Policy Institute and Alabama Citizens Action Program) cannot sue in Alabama's name and do not have standing, that the petition for writ of mandamus is procedurally deficient given that there is no lower court opinion, and that the court's opinion improperly rules on the constitutionality of the Alabama marriage laws since that issue is not before it. Justice Shaw concludes:
I believe that this case is not properly before this Court. As the main opinion notes, this case is both unusual and of great public interest; however, I do not see a way for this Court to act at this time. By overlooking this Court's normal procedures; by stretching our law and creating exceptions to it; by assuming original jurisdiction, proceeding as a trial court, and reaching out to speak on an issue that this Court cannot meaningfully impact because the Supreme Court of the United States will soon rule on it; and by taking action that will result in additional confusion and more costly federal litigation involving this State's probate judges, this Court, in my view, is venturing into unchartered waters and potentially unsettling established principles of law.
Shaw's dissent provides a window into the Alabama Supreme Court's lengthy opinion. Much of the opinion concerns the odd procedural posture of the case. The opinion does specifically address the relationship between Alabama and the federal judge's decision by declaring that the "Respondents' Ministerial Duty is Not Altered by the United States Constitution":
The United States District Court for the Southern District of Alabama has declared that Alabama's laws that define marriage as being only between two members of the opposite sex -- what has been denominated traditional marriage -- violate the United States Constitution. After careful consideration of the reasoning employed by the federal district court in Searcy I, we find that the provisions of Alabama law contemplating the issuance of marriage licenses only to opposite-sex couples do not violate the United States Constitution and that the Constitution does not alter or override the ministerial duties of the respondents under Alabama law.
Thus, because the Alabama Supreme Court disagrees, Alabama is not bound by the federal decision. The Alabama Supreme Court's "per curiam" opinion on the constitutionality of the same-sex marriage ban is scholarly, lengthy, and well-reasoned (and perhaps more persuasive than the Sixth Circuit's opinion in DeBoer v. Snyder, to which the United States Supreme Court granted certiorari, and on which the Alabama Supreme Court relies extensively). But this discussion does little to resolve the basic federalism of whether the state is bound by the federal court's judgment. The court's order does include this specific provision, which may engage the issue most directly:
As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.
March 3, 2015 in Courts and Judging, Current Affairs, Federalism, Fourteenth Amendment, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 24, 2015
A panel of the Second Circuit issued its amended opinion in Garcia v. Does now holding that the New York City police officers do have qualified immunity in the First Amendment suit arising from plaintiffs' arrests for participating in a demonstration in support of the Occupy Wall Street movement.
Recall that in December, the full Second Circuit granted review of the case. In today's opinion, the court noted that it had withdrawn the panel opinion, was granting the petition for rehearing, and now reversing the district judge and remanding the case with instructions to dismiss the complaint.
Thus, the panel now finds that qualified immunity can be - - - and is here - - - established at the pleading stage, citing Wood v. Moss (2014), noting that "qualified immunity protects officials not merely from liability but from litigation, that the issue should be resolved when possible on a motion to dismiss, before the commencement of discovery, to avoid subjecting public officials to time consuming and expensive discovery procedures." This echoes Judge Livingston's dissent in the original panel opinion.
The underlying First Amendment issue was whether defendant police officers "implicitly invited the demonstrators to walk onto the roadway of the Brooklyn Bridge, which would otherwise have been prohibited by New York law" and then arrested them without "fair warning." Today's panel opinion now explains:
On the face of the Complaint, the officers were confronted with ambiguities of fact and law. As a matter of fact, the most that is plausibly alleged by the Complaint and the supporting materials is that the police, having already permitted some minor traffic violations along the marchers’ route, and after first attempting to block the protesters from obstructing the vehicular roadway, retreated before the demonstrators in a way that some of the demonstrators may have interpreted as affirmatively permitting their advance. Whether or not such an interpretation was reasonable on their part, it cannot be said that the police’s behavior was anything more than – at best for plaintiffs – ambiguous, or that a reasonable officer would necessarily have understood that the demonstrators would reasonably interpret the retreat as permission to use the roadway.
This "all doubts resolved in favor of the defendants" stance on a motion to dismiss for qualified immunity illustrates how very high the bar has become for protestors raising a First Amendment claim.
[image of Brooklyn Bridge via]
Monday, February 9, 2015
Supreme Court Denies Stay of Alabama Same-Sex Marriage While Alabama Supreme Court Chief Justice Continues the Argument
Over a dissenting opinion by Justice Thomas, joined by Justice Scalia, the Court denied the application for a stay in Strange v. Searcy. Recall that in January, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.
The controversial Chief Judge of the Alabama Supreme Court Roy Moore has reacted negatively to the federal court opinion, including penning a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order. That letter prompted an ethics complaint filed against Roy Moore from the Southern Poverty Law Center arguing that:
Chief Justice Roy Moore has improperly commented on pending and impending cases; demonstrated faithlessness to foundational principles of law; and taken affirmative steps to undermine public confidence in the integrity of the judiciary. For all these reasons, we respectfully request that this Judicial Inquiry Commission investigate the allegations in this complaint and recommend that Chief Justice Moore face charges in the Court of the Judiciary.
assist weary, beleaguered, and perplexed probate judges to unravel the meaning of the actions of the federal district court in Mobile, namely that the rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law.
Judge Moore's argument that the state need not comply with federal decisions has prompted some commentators to make comparisons to Alabama's position during the Civil Rights Era, including a thoughtful WaPo piece by ConLawProf Ronald J. Krotoszynski Jr. at University of Alabama Law School.
The dissenting opinion from Justice Thomas (joined by Scalia) did not mention Judge Moore by name, but did include a decisive nod to some of Moore's arguments:
Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. *** It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.
Perhaps more importantly, Justice Thomas notes that the constitutionality of same-sex marriage is now before the Court, but yet
the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013). This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.
Justice Thomas is not the only one considering whether the Court's denial of a stay and thus allowing same-sex marriages to proceed in Alabama is a "signal" of the Court's leanings in DeBoer v. Snyder.
February 9, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Interpretation, News, Opinion Analysis, Recent Cases, Supremacy Clause, Supreme Court (US), Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Friday, January 23, 2015
In a ten page Opinion and Order late Friday in Searcy v. Strange, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.
Judge Granade found that Baker v. Nelson (1972) did not operate as a binding precedent.
She also mentioned that the Eleventh Circuit had not yet ruled on the issue and in footnote 1 acknowledged that the United States Supreme Court had granted certiorari on the issue.
She found that marriage is a fundamental right:
“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” and women. Loving v. Virginia, 388 U.S. 1 (1967). Numerous cases have recognized marriage as a fundamental right, describing it as a right of liberty, Meyer v. Nebraska, 262 U.S. 390, 399, of privacy, Griswold v. Connecticut, 381 U.S. 479 (1965), and of association, M.L.B. v. S.L.J., 519 U.S. 102, 116, (1996). “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” Planned Parenthood of SE Pa. v. Casey, 505 U.S. 833, 851 (1992).
She articulated that laws that "implicate fundamental rights are subject to strict scrutiny and will survive constitutional analysis only if narrowly tailored to a compelling government interest." She considered Alabama's asserted interest of "protecting the ties between children and their biological parents and other biological kin," and concluded that the means chosen - excluding same-sex couples - was not narrowly tailored:
The Attorney General does not explain how allowing or recognizing same-sex marriage between two consenting adults will prevent heterosexual parents or other biological kin from caring for their biological children. He proffers no justification for why it is that the provisions in question single out same-sex couples and prohibit them, and them alone, from marrying in order to meet that goal. Alabama does not exclude from marriage any other couples who are either unwilling or unable to biologically procreate. There is no law prohibiting infertile couples, elderly couples, or couples who do not wish to procreate from marrying. Nor does the state prohibit recognition of marriages between such couples from other states. The Attorney General fails to demonstrate any rational, much less compelling, link between its prohibition and non-recognition of same-sex marriage and its goal of having more children raised in the biological family structure the state wishes to promote. There has been no evidence presented that these marriage laws have any effect on the choices of couples to have or raise children, whether they are same-sex couples or opposite-sex couples. In sum, the laws in question are an irrational way of promoting biological relationships in Alabama.
Judge Granade continued: "If anything, Alabama’s prohibition of same-sex marriage detracts from its goal of promoting optimal environments for children."
Judge Granade's opinion does briefly discuss the equal protection standard for reviewing sexual orientation classifications. But given her conclusion regarding fundamental right meriting strict scrutiny, the opinion does not contain an extensive or rigorous distinction between the Equal Protection Clause and Due Process Clause analysis.
Judge Grande's Order ruled on cross motions for summary judgment, enjoined the state from enforcing the same-sex bans, and did not contain a stay.
One would assume that the attorneys for Alabama are drafting their stay petitions.
UPDATE: On Sunday, January 25, 2015, Judge Granade issued her Stay Order granting a stay until February 9, 2015. The judge found that the State did not warrant a stay under the standards, but
In its discretion, however, the court recognizes the value of allowing the Eleventh Circuit an opportunity to determine whether a stay is appropriate. Accordingly, although no indefinite stay issues today, the court will allow the Attorney General time to present his arguments to the Eleventh Circuit so that the appeals court can decide whether to dissolve or continue the stay pending appeal (assuming there will be an appeal.) The preliminary injunction will be stayed for 14 days.
Friday, January 16, 2015
On Friday afternoon, the Court granted certiorari in the Sixth Circuit consolidated cases in DeBoer v. Snyder from the Sixth Circuit. [Recall that a divided Sixth Circuit panel reversed the district court decisions in Kentucky, Michigan, Ohio, and Tennessee].
Here's the Court's grant:
The cases are consolidated and the petitions for writs of certiorari are granted limited to the following 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 remainder of the Order sets out the briefing schedule and oral argument:
A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.
Thursday, January 15, 2015
On Tuesday, January 20, the United States Supreme Court will hear arguments in the closely-watched case of Williams-Yulee v. The Florida Bar involving a First Amendment challenge to a state rule prohibiting the personal solicitation of campaign contributions in a judicial election. Our discussion of the grant of certiorari is here.
Vanderbilt Law Review has published its "Roundtable" symposium about the pending case. It includes:
The Absent Amicus: “With Friends Like These . . .”
Robert M. O’Neil · 68 Vand. L. Rev. En Banc 1 (2015).
Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar
Ruthann Robson · 68 Vand. L. Rev. En Banc 15 (2015).
Much Ado About Nothing: The Irrelevance of Williams-Yulee v. The Florida Bar on the Conduct of Judicial Elections
Chris W. Bonneau & Shane M. Redman · 68 Vand. L. Rev. En Banc 31 (2015).
Williams-Yulee and the Inherent Value of Incremental Gains in Judicial Impartiality
David W. Earley & Matthew J. Menendez · 68 Vand. L. Rev. En Banc 43 (2015).
Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. The Florida Bar
Stephen J. Ware · 68 Vand. L. Rev. En Banc 59 (2015).
The Jekyll and Hyde of First Amendment Limits on the Regulation of Judicial Campaign Speech
Charles Gardner Geyh · 68 Vand. L. Rev. En Banc 83 (2015).
What Do Judges Do All Day? In Defense of Florida’s Flat Ban on the Personal Solicitation of Campaign Contributions From Attorneys by Candidates for Judicial Office
Burt Neuborne · 68 Vand. L. Rev. En Banc 99 (2015).
Williams-Yulee v. The Florida Bar, the First Amendment, and the Continuing Campaign to Delegitimize Judicial Elections
Michael E. DeBow & Brannon P. Denning · 68 Vand. L. Rev. En Banc 113 (2015).
January 15, 2015 in Courts and Judging, Due Process (Substantive), Elections and Voting, First Amendment, Fourteenth Amendment, Scholarship, Speech, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Monday, January 12, 2015
In her opinion in Rosenbrahn v. Daugaard, Judge Karen Schreier of the District of South Dakota found that the state's statute and constitutional amendment limiting marriage and quasi-marital recognition to "a man and a woman" was unconstitutional.
Judge Schreier's 28 page opinion is well-crafted, succinct yet comprehensive. It largely rests on marriage as a fundamental right under the due process clause:
Pertinent decisions from the Supreme Court are clear and consistent that the right to marriage is a fundamental right. The Supreme Court has also refused to describe the right to marriage by reference to the individuals wishing to exercise that right. In keeping with the decisions of most of the federal courts that have addressed this issue, this court agrees with plaintiffs that the question in this case is whether same-sex couples, like opposite-sex couples, may marry. Thus, the right at stake is not a new right to same-sex marriage, as defendants contend. Instead, the substantive due process right is the right to marry, which right is fundamental. South Dakota’s marriage laws significantly interfere with this fundamental right by preventing same-sex couples from marrying and refusing to recognize out-of-state same-sex marriages. Because strict scrutiny applies to analyze deprivations of fundamental rights claims, the court will apply strict scrutiny here.
In applying strict scrutiny, Judge Schreier rejected South Dakota’s justifications - - - channeling procreation into marriage and proceeding with caution - - - as compelling, noting that the state seemingly conceded the failure to rise to this level. As to the caution interest, the judge remarked that if "accepted as a compelling state interest, this justification would support every existing law." Moreover, the denial of same-sex marriage was not narrowly tailored to serve these interests.
In a very brief paragraph, Judge Schreier addressed the equal protection claim, essentially bootstrapping it to the due process claim: "For reasons stated with respect to plaintiffs’ due process claim, South Dakota’s same-sex marriage ban deprives same-sex citizens of a fundamental right, and that classification is not narrowly tailored to serve a compelling state interest. Thus, South Dakota’s same-sex marriage."
Judge Schreier did issue a stay, however, writing that although the ongoing denial of a constitutional right is an irreparable injury, the lack of an opinion by the Eighth Circuit means that the decision "presents novel and substantial legal questions" warranting a stay.
Yet the legal questions may be growing less and less novel, even if still subject to a circuit split and still awaiting United States Supreme Court review.
Saturday, January 10, 2015
The Ninth Circuit, over a dissent of three judges, has denied the petitions for en banc review of Latta v. Otter (and Sevick v. Sandoval) in which a panel held that the same-sex marriage bans in Idaho and Nevada respectively are unconstitutional.
Recall that the unanimous panel opinion authored by Judge Reinhardt held that the Idaho and Nevada laws regarding same-sex marriage "violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard" of SmithKline Beecham Corp. v. Abbott Labs.
The Ninth Circuit's panel opinion was rendered one day after the United States Supreme Court denied certiorari to the petitions in the Fourth, Seventh, and Tenth Circuit cases with similar holdings. However, since then, the Sixth Circuit rendered a divided panel decision in DeBoer v. Snyder reversing lower courts and upholding the same-sex marriage bans in in Kentucky, Michigan, Ohio, and Tennessee.
Judge O'Scannlain's dissent from the denial of en banc review - - - joined by Judges Rawlinson and Bea - - - relies in part on the Sixth Circuit's opinion in DeBoer v. Snyder and the circuit split it created. Like the Sixth Circuit, O'Scannlain argues that the operative precedent is Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question." And like the Sixth Circuit, the dissent distinguishes Windsor v. United States as limited to the federal government.
The major argument of the dissent, however, is that the question of same-sex marriage is not only one for the states, it is decidedly not one for the federal courts interpreting the constitution: "Nothing about the issue of same-sex marriage exempts it from the general principle that it is the right of the people to decide for themselves important issues of social policy."
This judicial restraint v. judicial activism debate is well-worn territory. And like other judges, O'Scannlain is not a consistent adherent to one side or the other: Recall his dissent from en banc review in Pickup v. Brown, in which the panel upheld a California statute banning sexual conversion therapy against a constitutional challenge. But O'Scannlain does interestingly write:
As Justice Kennedy wrote in Schuette, ‘‘It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds . . . . Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.”
Thus, O'Scannlain implicitly points to Kennedy's inconsistency regarding the desirability of resort to democratic processes and judicial restraint in the affirmative action case of Schuette as compared to his opinion in Romer v. Evans (on Colorado's Amendment 2), as well as Windsor and Lawrence v. Texas, and presumably Kennedy's opinion should the same-sex controversy reach the United States Supreme Court.
The Court itself is currently entertaining several petitions for certiorari on the same-sex marriage issue, including the Sixth Circuit opinion.
Meanwhile, the Fifth Circuit heard oral arguments (January 9) on appeals in Robicheaux v. Caldwell (in which a federal judge upheld Louisiana's same-sex marriage ban); DeLeon v. Perry (preliminary injunction against Texas' same-sex marriage ban as unconstitutional); and Campaign for Southern Equality v. Bryant, (preliminary injunction against Mississippi's same-sex marriage ban as unconstitutional). The oral arguments are available on the Fifth Circuit's website.
January 10, 2015 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Sexual Orientation, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Thursday, January 8, 2015
In a relatively brief per curiam opinion in Phillips v. City of New York the Second Circuit has upheld New York's vaccination requirement to attend public school, N.Y. Pub. Health Law § 2164(7)(a), against constitutional challenges.
The court rejected arguments that the statutory vaccination requirement and its enforcement by exclusion of students from school violates substantive due process, the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment, as well as state and municipal law. Important to the court's rationale, and which the opinion took care to mention even in its description of the statute, the law includes medical and religious exemptions.
The religious exemption is most interesting in the context of this litigation. For one plaintiff, the court affirmed the rejection of the religious basis for her sought-for exemption, agreeing with previous determinations that "her views on vaccination were primarily health‐related and did not constitute a genuine and sincere religious belief." For another plaintiff, who had a religious exemption, the court found that the exclusion of her children from school during a vaccine-preventable outbreak of chicken pox was constitutional: "The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” quoting and citing Prince v. Massachusetts, 321 U.S. 158, 166‐67 (1944).
The centerpiece of the court's analysis was predictably and correctly the Supreme Court's 1905 decision in Jacobson v. Commonwealth of Massachusetts, rejecting a constitutional challenge to a state vaccination mandate.
The issue of vaccinations and constitutional challenges has received renewed attention in light of outbreaks of childhood illnesses thought to be essentially eradicated. For example, as the LA Times reported yesterday, a recent outbreak of measles in California could be connected to vaccine-resistance:
"The current pertussis and measles outbreaks in the state are perfect examples of the consequences and costs to individuals and communities when parents choose not to vaccinate their children," [Gil] Chavez [epidemiologist with the California Department of Public Health] said.
Ther have also been widespread reports of illness outbreaks in Michigan, arguably attributable to its liberal opt-out allowance for school children.
January 8, 2015 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Medical Decisions, News, Religion, Science | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 17, 2014
The Sixth Circuit ruled today in Michigan Corrections Organization v. Michigan Dep't of Corrections that the federal courts lacked subject matter jurisdiction over a claim by Michigan correctional officers against the Corrections Department Director under the federal Fair Labor Standards Act. The court dismissed the federal case.
While the case marks a defeat for the workers (and others who seek to enforce the FLSA against a state), the plaintiffs may be able to re-file in state court. (They brought a state claim in federal court, along with their FLSA claim, and, if there are no other bars, they may be able to revive it in a new state proceeding.)
Correction officers filed the suit, claiming that they wre denied pay for pre- and post-shift activities (like punching the clock, waiting in line for security, and the like) in violation of the FLSA. They sued the Department Director in his official capacity for denied overtime pay and declaratory relief.
The Sixth Circuit rejected the federal claims. The court ruled that the Director enjoyed Eleventh Amendment immunity against monetary damages, and that Congress did not validly abrogate Eleventh Amendment immunity through the FLSA (because Congress enacted the FLSA under its Commerce Clause authority). The court rejected the plaintiffs' contention that Congress enacted the FLSA under its Fourteenth Amendment, Section 5 authority to enforce privileges or immunities against the states (which, if so, would have allowed Congress to abrogate Eleventh Amendment immunity). The court said that the Privileges or Immunities Clause (after The Slaughter-House Cases) simply can't carry that weight--that wages are not a privilege or immunity of national citizenship.
The court went on to reject the plaintiffs' claim for declaratory relief under the FLSA, Section 1983, and Ex Parte Young. The court said that the FLSA "does not provide a basis for this declaratory judgment action." That means that the plaintiffs can't get declaratory relief from the statute itself, and, because the FLSA doesn't provide for private enforcement by way of declaratory relief, the plaintiffs can't get Section 1983 or Ex Parte Young relief, either.
December 17, 2014 in Cases and Case Materials, Commerce Clause, Congressional Authority, Eleventh Amendment, Federalism, Fourteenth Amendment, News, Opinion Analysis, Privileges or Immunities: Fourteenth Amendment , Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Tuesday, December 16, 2014
In its opinion in Vivid Entertainment v. Fielding, a panel of the Ninth Circuit affirmed the district judge's denial of a preliminary injunction to Los Angeles Measure B, passed by voter initiative in 2012.
The central issue in the case was the so-called "condom mandate" that requires performers to use condoms during "any acts of vaginal or anal sexual intercourse." The opinion, authored by Judge Susan Gruber, and joined by Judge Alex Kozinksi and sitting by designation Judge Jack Zouhary), agreed with the district judge that the First Amendment challenge to the mandate was subject to intermediate scrutiny. The Ninth Circuit relied in large part on the "secondary effects" doctrine, finding that
The purpose of Measure B is twofold: (1) to decrease the spread of sexually transmitted infections among performers within the adult film industry, (2) thereby stemming the transmission of sexually transmitted infections to the general population among whom the performers dwell.
The court rejected the argument that strict scrutiny should apply nevertheless because Measure B was a "complete ban" on the protected expression, which plaintiffs would define as "condomless sex" ("condomless sex differs from sex generally because condoms remind the audience about real-world concerns such as pregnancy and disease . . . films depicting condomless sex convey a particular message about sex in a world without those risks). Citing Spence v. Washington (1974), the Ninth Circuit concluded that "whatever unique message Plaintiffs might intend to convey by depicting condomless sex, it is unlikely that viewers of adult films will understand that message." Moreover, in an interesting footnote (6), the Ninth Circuit distinguished between the expression and the conduct:
On its face, Measure B does not ban expression; it does not prohibit the depiction of condomless sex, but rather limits only the way the film is produced.
(emphasis in original). The panel opinion also discussed - - - and rejected - - - the arguments that Measure B was not sufficiently "narrowly tailored" in the intermediate scrutiny test because there was a voluntary testing and monitoring cheme for sexually transmitted diseases and that Measure B would be "ineffective" because producers could simply move beyond county lines.
The district judge did, however, find that certain portions of Measure B did not survive the constitutional challenge. On appeal, the plaintiffs argued that Measure B was not subject to severance. The Ninth Circuit panel rejected the severance argument, but helpfully included as an appendix to its opinion a "line-edited version" of Measure B.Finally, the Ninth Circuit panel rejected the argument that the appellate court did not have Article III power to hear the appeal because the intervenors - - - including a Campaign Committee Yes on Measure B - - - lacked Article III standing. The panel distinguished Hollingsworth v. Perry (the Prop 8 case), noting that here it was not the intervenors that sought to appeal but the plaintiffs themselves who had invoked the court's power.
Tuesday, December 9, 2014
The Ninth Circuit yesterday upheld Arizona's reciprocal bar licensing rule against a host of federal constitutional claims. The ruling means that Arizona's rule stays in place.
At issue was Arizona's Rule 34(f), which permits admission to the state bar on motion for attorneys who are admitted to practice in states that permit Arizona attorneys to be admitted on a basis equivalent to Arizona's, but requires attorneys admitted to practice law in states that don't have such reciprocal admission rules to take the bar exam.
According to the National Conference of Bar Examiners and the ABA, just less than half the states and jurisdictions offer reciprocal admissions under this kind of rule.
Plaintiffs challenged the rule under the Equal Protection Clause, the Fourteenth Amendment Privileges or Immunities Clause, Article IV Privileges and Immunities, the Dormant Commerce Clause, and the First Amendment. The court rejected all of these claims.
As to equal protection, the court applied rational basis review and said that the state had legitimate interests in regulating its bar and in ensuring that its attorneys are treated equally in other states.
As to Article IV Privileges and Immunities and the Dormant Commerce Clause, the court said that the rule didn't discriminate against out-of-state attorneys--that it was a neutral rule that treated all attorneys alike--and that it advanced substantial state interests (the same as those above). The rule's neutrality also drove the result in the plaintiffs' Fourteenth Amendment privileges or immunities claim, because the right to travel isn't implicated (it can't be, if everybody is treated alike).
As to the First Amendment, the court applied the time-place-manner test and upheld the rule. The court flatly rejected the plaintiffs' right of association and right to petition claims.
December 9, 2014 in Association, Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Equal Protection, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Privileges or Immunities: Fourteenth Amendment , Speech | Permalink | Comments (0) | TrackBack (0)
Saturday, December 6, 2014
The United States Supreme Court has granted certiorari in Walker v. Texas Sons of Confederate Veterans involving a First Amendment challenge to the denial of a specialty license plate that would display the confederate flag to the Sons of Confederate Veterans.
The Fifth Circuit's divided panel opinion, authored by Judge Edward Pardo, reversed the district judge's grant of summary judgment to Texas and concluded that the denial of a specialty license plate bearing a Confederate flag symbol constituted impermissible viewpoint discrimination under the First Amendment. The majority concluded that a "reasonable observer" of the license plate would believe it was the speech of the automobile's owner and not the government, and thus Texas cannot constitutionally allow some viewpoints to be expressed on the license plates but not others. Dissenting, Judge Jerry Smith contended that the doctrine of government speech articulated in the Court's unanimous Pleasant Grove City v. Summum (2009) controls: there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas.
The constitutional status of license plates - - - whether they are specialty, vanity, or state-mandated - - - has been fertile ground for First Amendment litigation. As we've discussed, the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.
What might be called the First Amendment doctrine of license plates, following from the classic First Amendment case of Wooley v. Maynard (1977) involving compelled speech has become more complex with the introduction of specialty and vanity license plates. Such plates do produce revenue for states, but also provoke First Amendment concerns and expensive litigation. In granting certorari, the Court has the opportunity to settle the matter. Or perhaps the Court will further complicate the issue of expressive license plates on our cars.
Wednesday, December 3, 2014
In August Judge Robert Hinkle of the Northern District of Florida found in Brenner v. Scott that Florida's same-sex marriage bans in the constitution as Article I §27 and Florida Statutes §741.04(1) violated the Fourteenth Amendment.
Today, an Eleventh Circuit panel consisting of Judges Frank Hull, Charles Wilson, and Aldaberto Jordon in a brief Order in Brenner v. Armstrong granted expedited treatment of a motion to extend the stay of the preliminary injunction, but denied the motion.
The Order concluded:
The stay of preliminary injunctions entered by the District Court expires at the end of the day on January 5, 2015.
Thus, unless there is en banc review or a United States Supreme Court stay, same-sex marriages will begin in Florida in first days of the new year.
Thursday, November 20, 2014
Montana District Judge Follows Ninth Circuit: Declares State's Same Sex Marriage Ban Unconstitutional
In his 18 page Order in Rolando v. Fox, US District Judge Brian Morris enjoined Montana's laws banning same-sex marriage (Article XIII, section 7 of the Montana Constitution, and Montana Code Annotated section 40-1-103 and section 40-1-401) as unconstitutional under the Fourteenth Amendment's Equal Protection Clause.
The judge essentially found that the Ninth Circuit's decision in Latta v. Otter regarding same-sex marriage - - - inclusive of its decision to adhere to heightened scrutiny in SmithKline Beecham Corp. v. Abbott - - - was binding. The court rejected the argument that the recent Sixth Circuit opinion in DeBoer v. Snyder changed Ninth Circuit precedent.
The judge, however, did discuss the state's asserted justifications, finding them with without merit and focusing on children. The judge ended by recognizing "that not everyone will celebrate this outcome," but nevertheless that the "time has come for Montana to follow all the other states within the Ninth Circuit": "Today Montana becomes the thirty-fourth state to permit same-sex marriage."
The judge did not stay the injunction.
Thursday, November 13, 2014
The Fifth Circuit has denied en banc review by a vote of 15-5 in its Order in Fisher v. University of Texas at Austin.
Recall that in a divided opinion in July, a Fifth Circuit panel held that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.
Recall also that the United States Supreme Court had reversed the Fifth Circuit's original finding in favor of the University (affirming the district judge) and remanded the case for a "further judicial determination that the admissions process meets strict scrutiny in its implementation." The opinion, authored by Justice Kennedy - - - with only Justice Ginsburg dissenting and Justice Kagan recused - - -specified that the "University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal" of diversity and the University should receive no judicial deference on that point.
Judge Emilio Garza, the Senior Judge who dissented from the panel opinion also wrote a very brief dissenting opinion from en banc review, which was joined by Judges Jones, Smith, Clement, and Owen. Judge Garza contends that while the "panel majority dutifully bows" to the United States Supreme Court's requirements in Fisher, it "then fails to conduct the strict scrutiny analysis" the opinion requires "thus returning to the deferential models" of Regents of University of California v. Bakke and Grutter v. Bollinger.
A petition for writ of certiorari is certain; the grant of that petition is less certain.
November 13, 2014 in Affirmative Action, Equal Protection, Federalism, Fourteenth Amendment, Opinion Analysis, Race, Recent Cases, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
The Court has issued an Order vacating the temporary stay issued by Justice Sotomayor on Monday of the preliminary injunction of Judge Daniel Crabtree entered last week in Marie v. Moser regarding Kansas' same-sex marriage ban.
As we noted, Judge Crabtree stayed the injunction himself, reasoning that although the injunction seemed firmly established given Tenth Circuit precedent, Kansas raised many jurisdiction and justiciability issues.
The Order from the Court notes that "Justice Scalia and Justice Thomas would grant the application for stay," but there is no accompanying opinion.
Tuesday, November 11, 2014
The Supreme Court will hear oral arguments tomorrow in the case challenging Alabama's re-drawing of its state legislative districts after the 2010 census. The case pits a claim under Section 2 of the Voting Rights Act against a defense under Section 5, although the constitutionality of those provisions is not (directly) at issue in the case.
Alabama redrew its state legislative districts after the 2010 census in order to maintain equal population across districts (within 2 percent), to maintain the existing number of majority-minority districts, and to maintain the existing percentage of black voters in those majority-minority districts. But the state's demographics shifted so that in order to achieve those goals the state had to pack black voters into existing majority-minority districts. The net result was to consolidate minority voting power in these majority-minority districts, but to enhance Republicans' power in the rest of the state.
Democrats and black legislators and groups sued, arguing that the re-districting plans violated Section 2 of the Voting Rights Act and amounted to racial and political gerrymanders. The state countered that it was compelled to draw the districts this way under Section 5 of the VRA in order to preserve majority-minority districts and to avoid retrogression. (The irony of Alabama using Section 5 as a shield after it so vigorously attacked Section 5 in Shelby County has escaped no one.)
The three-judge district court divided along party lines--the two judges appointed by a Republican president ruling for the state, and the lone judge appointed by a Democrat dissenting.
The case pits the plaintiffs' Section 2 claim against the state's Section 5-based reason for the districts. The state's position--that Section 5 made them do it--is part of a larger trend of states applying "not the Voting Rights Act, but a hamhanded cartoon of the Voting Rights Act--substituting blunt numerical demographic targets for the searching examination of local political conditions that the statute actually demands," according to Loyola's (Los Angeles) Justin Levitt. The state's position also potentially puts the constitutionality of Section 5 before the Court: If Section 5 requires race-based decisions like this, isn't it unconstitutional? That question isn't squarely before the Court, but it's certainly lingering behind the curtains.
Monday, November 10, 2014
Recall the Pennsylvania legislature's passage of the "Revictimization Act" prohibiting any act that "perpetuates the continuing effect of the crime on the victim," including seemingly a graduation speech from the inmate Mumia Abu-Jamal.
Abu-Jamal and others have filed a complaint challenging the law in federal court as violating the First Amendment as well as Article 1 §7 of the state constitution.
Friday, November 7, 2014
A day after the Sixth Circuit's divided decision upholding same-sex marriage bans in several states, and thus creating a circuit split (with the Supreme Court having denied certiorari to the Seventh, Tenth, and Fourth Circuit opinions holding to the contrary), United States District Judge Ortrie D. Smith of Missouri (and in the Eighth Circuit) has rendered an opinion in Lawson v. Kelly, finding Missouri's same-sex marriage ban unconstitutional.
Judge Smith's 18 page opinion agrees with the Sixth Circuit majority in one respect: The Supreme Court's opinion in Windsor v. United States holding DOMA unconstitutional is not dispositive. However, Judge Smith also states that the Court's 1972 dismissal in Baker v. Nelson is not dispositive.
Judge Smith holds that under Eighth Circuit precedent, sexual orientation "is not a suspect class and that classifications based on sexual orientation are not subject to heightened review of any kind." On that basis, he grants judgments on the pleadings to the defendants.
However, Judge Smith holds that the same-sex marriage bans are unconstitutional under the Fourteenth Amendment. First, Judge Smith concludes that marriage is a fundamental right under the Due Process Clause, even as he notes that not all regulations of marriage are subject to strict scrutiny. Following Zablocki v. Redhail, however, he applies the "interfere directly and substantially with the right to marry" standard and concludes that the "prohibition must be examined with strict scrutiny, and viewed in that light the restriction fails to satisfy the Due Process Clause’s dictates."
Additionally, Judge Smith analyzes the same-sex marriage ban under the Equal Protection Clause as a classification based on gender:
The restriction on same-sex marriage is a classification based on gender. The State’s “permission to marry” depends on the gender of the would-be participants. The State would permit Jack and Jill to be married but not Jack and John. Why? Because in the latter example, the person Jack wishes to marry is male. The State’s permission to marry depends on the genders of the participants, so the restriction is a gender-based classification.
As Judge Smith avers, "Restrictions based on gender are subject to intermediate scrutiny." He finds the standard is not satisfied:
The State has not carried its burden. Its sole justification for the restriction is the need to create rules that are predictable, consistent, and can be uniformly applied. Assuming this is a valid justification for a restriction, there is no suggestion as to why the gender-based classification is substantially related to that objective. A rule that ignores gender would be just as related to that objective and be just as easy to apply (and arguably would impose less of a burden on the Recorders of Deeds because they would not have to conduct any gender-based inquiry whatsoever). Regardless, administrative convenience is not a valid reason to differentiate between men and women.
Judge Smith therefore concluded that "section 451.022 of the Revised Missouri Statutes and Article I, section 33 of the Missouri Constitution, and any other provision of state law that precludes people from marrying solely because they are of the same gender violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment" and enjoined state officials from declining to issue same-sex marriage licenses although the Judge stayed the "effects of the judgment" until the judgment is final.
November 7, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)