Saturday, December 14, 2013
In a 91 page opinion in Brown v. Buhman, federal district judge Clark Waddoups has concluded that Utah's anti-bigamy statute is partially unconstitutional.
The statute, Utah Code Ann. § 76-7-101, provides:
- (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
- (2) Bigamy is a felony of the third degree.
- (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.
The challengers to the statute, the Browns, are famous from the reality program Sister Wives and the accompanying book ) and are represented by Professor Jonathan Turley, who blogs about the case here.
The judge's scholarly opinion includes a discussion of Edward Said's groundbreaking book Orientalism as a critique of the well-known passage in the United States Supreme Court’s 1879 decision in Reynolds v. United States upholding the criminalization of polygamy by reasoning, in part, that "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people."
Judge Waddoups considers both the due process challenge (applying Washington v. Glucksberg) and the free exercise challenge (applying Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah).
In the due process analysis, the judge specifically found
there is no “fundamental right” to polygamy under Glucksberg. To phrase it with a “careful description” of the asserted right [citations omitted], no “fundamental right” exists to have official State recognition or legitimation of individuals’ “purported” polygamous marriages—relationships entered into knowing that one of the parties to such a plural marriage is already legally married in the eyes of the State. The fundamental right or liberty interest that was under consideration in Glucksberg is instructive for the analysis of whether the asserted right to polygamy is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”
The judge also found that the criminalization of what it called the "religious cohabitation" portion of the statute did not rise to the level of a fundamental right, extensively discussing Lawrence v. Texas and the Tenth Circuit's limiting interpretation of Lawrence.
However, the judge did find that "the cohabitation prong does not survive rational basis review under the substantive due process analysis." This analysis implicitly imported a type of equal protection analysis, with the judge concluding:
Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.
Complementing this conclusion regarding discriminatory enforcement, the judge's free exercise of religion analysis concludes that while the Utah statute may be facially neutral, the cohabitation prong is not "operationally neutral" and not of general applicability. The judge therefore applied strict scrutiny to the cohabitation prong and easily concluded the statute failed.
As an alternative free exercise analysis, the judge reasoned that the cohabitation prong also merited strict scrutiny because it involved a "hybrid rights" analysis under Employment Division, Department of Human Resources of Oregon v. Smith (1990), given the claims of due process, but also claims that the judge did not extensively analyzes such as free association, free speech, establishment, and equal protection.
Thus, the judge concluded the cohabitation prong of the statute is "unconstitutional on numerous grounds." However, the court explicitly narrowed the constructions of “marry” and “purports to marry" in the statute, so that the Utah statute continues to "remain in force as prohibiting bigamy in the literal sense—the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage." Not surprisingly then, the judge's opinion does not cite the Supreme Court's opinion last term in United States v. Windsor involving DOMA and same-sex marriage, in which Justice Scalia, dissenting, invoked the effect the decision would have on polygamy. [I've previously discussed the similarities of same-sex marriage and polygamy claims here].
Given the district judge's narrowing construction and the clear constitutional issues with the Utah statute's breadth, it might be possible that the state does not appeal.
December 14, 2013 in Books, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 4, 2013
Gerard Magliocca (Indiana) appeared recently on Your Weekly Constitutional, a pod-cast and radio show affiliated with James Madison's Montpelier, to discuss his new book American Founding Son: John Bingham and the Invention of the Fourteenth Amendment. Magliocca talks about John Bingham and the creation of the Fourteenth Amendment in this terrific hour-long segment with YWC host Stewart Harris.
Tuesday, November 12, 2013
What is the government interest?
This simple query, even before one evaluates the interest (is it compelling? or even merely legitimate?), can be a vexing one for students, professors, litigators, and courts. Legislative listing of such interests - - - whether in preambles, legislative history, or litigation - - - provides language but not necessarily meaning.
In his terrific article, "Interest Creep," (available on ssrn), Professor Dov Fox (pictured left) analyzes government interests in an array of constitutional cases. His argument that the way that courts characterize government interests often shapes how cases are decided will hardly be surprising. His contribution, however, is in his own characterizations and categorizations of the types of interests and their deployment. His specific discussion of the government's interest in "potential life," expressed by the Court in Roe v. Wade, in contemporary abortion regulations about "fetal pain" and "sex/race selection" is stellar.
Ultimately, he argues that
Casual reliance on underspecified interests like potential life, national security, or child protection frustrates a constructive struggle about how best to make sense of the various plausible but distinct concerns that those shibboleths are invoked to capture over time and across contexts Interest creep erodes adjudicative norms by impeding the capacity of litigants, judges, advocates, lawmakers, and citizens “to debate and to criticize the true reasons for [judicial] decisions."
Especially worth a read for anyone teaching or writing in the areas of reproductive rights.
The United States Supreme Court routinely rejects petitions for writs of certiorari, so today's denial in Pruitt v. Nova Health Systems is not especially noteworthy. Nevertheless, given the Oklahoma Supreme Court's decision in 2012, which we discussed here, holding that Oklahoma's abortion law requiring an ultrasound was unconstitutional because of Planned Parenthood v. Casey, 505 U.S. 833 (1992), does seem meaningful.
Its meaning is compounded by the Court's dismissal of the writ as improvidentally granted in Pruitt's companion case, Cline v. Oklahoma Coalition for Reproductive Justice, in which the Court certified a question to the Oklahoma Supreme Court regarding the interpretation of the abortion statute.
Thus, it seems as if the Court presently has no inclination to reconsider Casey.
Monday, October 28, 2013
In his opinion in Planned Parenthood of Greater Texas v. Abbott, Judge Lee Yeakel has enjoined portions of Texas HB 2, passed in July (despite a well-publicized filibuster by state senator Wendy Davis) and slated to become effective October 29, 2013.
The judge found unconstitutional the "admitting privileges provision" that provided:
A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services
He concluded that the provision placed a substantial obstacle in the path of a woman seeking an abortion and failed the rational basis test. As to the substantial obstacle, the judge noted that hospital admitting privileges for physicians performing abortions can be difficult to obtain; for example a physician performing low-risk abortions may simply not have sufficient surgeries to qualify. Moreover, many physicians are not within the 30 mile limit. Regarding a rational relationship, the judge found that hospital emergency rooms admitting a patient and hospitals subsequently treating her do not disfavor a patient whose physician does not have admitting privileges.
Judge Yeakel did not declare unconstitutional HB 2's revision of physician prescription of abortion-inducing medications such as RU-486. HB 2 essentially mandates following the FDA protocol, a protocol that is not usually followed and about which there is substantial disagreement. Judge Yeakel, however, found that HB 2 did not impose an undue burden because the physician could perform a surgical abortion. An exception, however, must be added if the physician determines that the health or life of the woman is at stake.
Texas is reportedly already appealing the decision. It is not the first time that Judge Lee (Earl Leroy) Yeakel has rendered an opinion declaring portions of a Texas statute restricting abortion unconstitutional and been appealed. Last year in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, a panel of the Fifth Circuit reversed Judge Yeakel's preliminary injunction involving a Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.
October 28, 2013 in Abortion, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Medical Decisions, Opinion Analysis, Reproductive Rights, Standing | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 15, 2013
Today's oral arguments before the United States Supreme Court in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) raised a raft of interesting hypotheticals, including this question: Is the Michigan's state constitution's equal protection clause, which mirrors the federal one, itself unconstitutional under the Fourteenth Amendment's Equal Protection Clause.
Of course, the issue before the Court involves a different provision of Michigan's Constitution: Prop 2, adopted by voter referendum in 2006, and now Art I §26 of the state constitution.
The referendum occurred subsequent to the Court's upholding of Michigan University School of Law's affirmative action policy in Grutter v. Bollinger, even as the Court held unconstitutional the plan of the large undergraduate university as not sufficiently narrowly tailored.
Recall that the en banc Sixth Circuit majority in Coalition to Defend Affirmative Action v. Regents of the University of Michigan relied upon the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief, relying on Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969).
The oral argument reflected a deep suspicion of the political process rationale, with the most serious questioning being directed at what the limits to such a doctrine might be. Justice Alito returned to the issue several times, posing various hypotheticals about faculty admissions plans that might be overruled by a dean or president of the university. Or maybe, he continued,
it's overruled by the regents. Maybe, if State laws allowed, it's -- it's overruled by an executive department of the State. Maybe it's overruled by the legislature through ordinary legislation. Maybe it's overruled through a constitutional amendment. At what point does the political restructuring doctrine kick in?
Later in the rebuttal argument of the Petitioner, Justice Alito suggested an answer to his own question:
Seattle and this case both involve constitutional amendments. So why can't the law -- the law be drawn -- the line be drawn there? If you change the allocation of power in one of these less substantial ways, that's one thing; but when you require a constitutional amendment that's really a big deal.
Indeed, this was exactly the rationale of the en banc Sixth Circuit's majority opinion, as the opening passages to that opinion illustrated.
And Justice Kennedy, seemingly in his role as a "swing vote" - - - although Justice Kagan is recused - - - seemed to share the specific concerns of how to draw a line in the cases.
Justice Scalia certainly did not seem inclined to worry about drawing lines or allocations of power. Indeed, he rejected the notion that Prop 2, now Article I §26 of the Michigan Constitution - - - despite its textual "on its face" use of a race - - - made a racial classification. He chastised Mark Rosenblum, arguing on behalf of some of the respondents, for referring to Prop 2 as including a "facial racial classification":
JUSTICE SCALIA: It's not a racial classification. You should not refer to it that way.
MR. ROSENBAUM: It is a racial -
JUSTICE SCALIA: It's the prohibition of racial classifications.
MR. ROSENBAUM: No, Your Honor.JUSTICE SCALIA: Every prohibition of racial classification is itself a racial classification?
After further discussion, Justice Scalia asked,
In that sense, the 14th Amendment itself is a racial classification, right?
To which Rosenbaum replied that he was using the Fourteenth Amendment itself as measurement. Yet this theme recurred, and had been part of the Petitioner's opening argument, including references to Michigan's equal protection clause.
Scalia also outright dismissed an appeal to originalism. When Shanta Driver (pictured right) on behalf of Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary (and who is its National Chair), began her argument asking the Court to affirm the Sixth Circuit and "to bring the 14th Amendment back to its original purpose and meaning, which is to protect minority rights against a white majority, which did not occur in this case," Scalia interjected:
JUSTICE SCALIA: My goodness, I thought we've -- we've held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only -- only the blacks. But I thought we rejected that. You -- you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?
And Justice Roberts surfaced the position that affirmative action was actually a detriment to those it sought to benefit, echoing some of the arguments in Thomas's dissent in Fisher, such as the so-called "mismatch theory."
Thus, while the arguments sometimes sought to distance themselves from the affirmative action battles that the Court re-engaged last term in Fisher v. UT, certainly Schuette v. Coalition to Defend Affirmative Action is another such battle, albeit on slightly different doctrinal terrain. It seems unlikely that it will have a different ultimate outcome.
Tuesday, October 8, 2013
But preemption was not the only constitutional attack on SB1070; and these challenges are slowly but surely making their way to the Ninth Circuit. In March, a panel of the Ninth Circuit rendered its opinion in Valle Del Sol v. Whiting and upheld District Judge Susan Bolton's preliminary injunction against enforcement of the day labor regulations of SB 1070 as violative of the First Amendment.
Today, the Ninth Circuit again rendered an opinion upholding Judge Bolton's preliminary injunction; and although the case is again styled Valle Del Sol v. Whiting, the provisions of SB 1070 at issue, codified as Arizona Revised Statutes §13-2929, are the ones that attempted to "criminalize the harboring and transporting of unauthorized aliens" within Arizona.
Authored for the panel by Judge Richard Paez, and joined by John T. Noonan, with a concurring opinion and minimal dissent by Judge Carlos Bea, the opinion devoted about 10 of its 45 pages to the issue of standing, concluding that there was both individual and organizational standing.
On the merits, the panel found a due process violation:
Section 13-2929 states that “[i]t is unlawful for a person who is in violation of a criminal offense” to knowingly or recklessly transport, conceal, harbor, or shield an unauthorized alien. We conclude that the phrase “in violation of a criminal offense” is unintelligible and therefore the statute is void for vagueness.
Interestingly, the footnote to this passage explains:
The plaintiffs did not originally raise this issue. But in order to address the plaintiffs’ preemption claim, we must first interpret the statute’s provisions. In attempting to do so, we are confronted with this incomprehensible element of § 13-2929. Thus, we resolve the vagueness issue because it is both “antecedent to . . . and ultimately dispositive of” the appeal before us.
The court stated that "Arizona makes no claim that 'in violation of a criminal offense' makes any sense as written." The panel rejected Arizona's arguments to "save" the statute's wording, stating that Arizona would have the court "replace a nonsensical statutory element with a different element" rather than engage in the more permissible approach of adopting a limiting construction.
The court then engaged with the preemption challenge, stating that even if it were to accept Arizona's proposed interpretation of the statute, the statute is also preempted by federal law, under the doctrines of field preemption and conflict preemption. It was from this analysis that Judge Bea dissented, saying that because the case is "resolved on other grounds, namely vagueness, I believe the court should not reach the preemption issue."
The mistake - - - carelessness? - - - in the drafting of this provision was a fatal flaw. While the legislature could redraft legislation, as the court notes, perhaps the political will in Arizona for bills such as SB1070 has diminished.
Monday, October 7, 2013
What newspapers does he read? Is he softening on his views of homosexuality? Does he believe in hell and the devil? Are women protected by the Fourteenth Amendment? What are his hobbies other than hunting? His television viewing? Favorite novels?
Most wrenching decision?:
Probably the most wrenching was Morrison v. Olson, which involved the independent counsel. To take away the power to prosecute from the president and give it to somebody who’s not under his control is a terrible erosion of presidential power. And it was wrenching not only because it came out wrong—I was the sole dissenter—but because the opinion was written by Rehnquist, who had been head of the Office of Legal Counsel, before me, and who I thought would realize the importance of that power of the president to prosecute. And he not only wrote the opinion; he wrote it in a manner that was more extreme than I think Bill Brennan would have written it. That was wrenching.
But later, he comes back to the opinion:
As to which is the most impressive opinion: I still think Morrison v. Olson. But look, we have different standards, I suppose, for what’s a great opinion. I care about the reasoning. And the reasoning in Morrison, I thought, was devastating—devastating of the majority. If you ask me which of my opinions will have the most impact in the future, it probably won’t be that dissent; it’ll be some majority opinion. But it’ll have impact in the future not because it’s so beautifully reasoned and so well written. It’ll have impact in the future because it’s authoritative. That’s all that matters, unfortunately.
It's not what he terms his most "heroic" decision, however, reserving that for a very different sort of opinion.
I mean the most heroic opinion—maybe the only heroic opinion I ever issued— was my statement refusing to recuse.
From the case involving Vice-President Cheney, with whom you’d gone hunting?
I thought that took some guts. Most of my opinions don’t take guts. They take smarts. But not courage. And I was proud of that. I did the right thing and it let me in for a lot of criticism and it was the right thing to do and I was proud of that. So that’s the only heroic thing I’ve done.
Given the standards of recusal - - - despite continuing controversies - - - there is little reason that Scalia or any other Supreme Court Justice should not give as many interviews as possible, even if they might reveal "bias."
Dahlia Lithwick over at Slate has an excellent analysis of the interview, including asking for the interviewer's perceptions about the interview: Are Jennifer Senior and Justice Scalia as far apart as they seem?
I asked Senior whether this [perception] felt accurate. She replied, “It's embarrassing, but the overlap between our worlds is almost nonexistent. It explains why the left and the right both responded so enthusiastically to this piece. Each side sees its own view, affirmed. One sees a monster and the other sees a hero. It's extraordinary, actually. The O'Reilly constituents think he's speaking sense; the Jon Stewart vote thinks virtually everything the guy says is nuts.”
October 7, 2013 in Books, Courts and Judging, Current Affairs, Equal Protection, Executive Authority, Fourteenth Amendment, Interpretation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, September 30, 2013
AG Eric Holder announced today that the U.S. Department of Justice would file suit against North Carolina in federal court to stop its new restrictions on voting. We previously posted on the ACLU suit against the state here.
The complaint alleges that North Carolina HB 589 reduces early voting days, eliminates same-day voter registration during early voting, prohibits the counting of provisional ballots cast outside a voter's precinct, and imposes a voter ID requirement--all in violation of Section 2 of the Voting Rights Act. DOJ argues that the changes have both a discriminatory purpose and a discriminatory effect. The Department also seeks "bail-in" under Section 3(c) of the VRA.
The cases come in the wake of the Court's ruling this summer in Shelby County v. Holder striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement. By striking Section 4(b), the Court rendered Section 5 preclearance a dead letter, unless and until Congress can rewrite it in a way that would pass muster with this Court--that is, likely never. Section 3(c) bail-in works very much like Section 5 preclearance, though. If acourt orders bail-in, it will retain jurisdiction over the state "for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color . . . ."
The North Carolina and Texas cases are sure to raise two new fronts in the assault on the Voting Rights Act: challenges to congressional authority to enact Section 3(c) bail-in, and challenges to congressional authority under Section 2 to ban state laws that have a discriminatory effect (even if not a discriminatory purpose).
September 30, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News | Permalink | Comments (1) | TrackBack (0)
Tuesday, September 24, 2013
According to a report in the Kansas City Star, David Guth, a journalism professor at University of Kansas has been placed on "administrative leave" for his tweet about after last week's shooting leaving 13 dead at the DC Navy Yard.
"The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”
While there is an implication that some in the KU Administration might believe this constitutes advocacy of violence, it's doubtful that the tweet would rise to this level. It certainly does not rise to the level of a threat: Compare the Ninth Circuit in United States v. Bagdasarian and a finding of true threats in a blog post by the Second Circuit in United States v. Turner.
There is also the question of the lack of due process accorded to Professor Guth, as some have noted.
But perhaps most relevant is the Ninth Circuit's recent opinion in Demers v. Austin. Certainly Guth's tweet is a matter of public concern and he was speaking as a private citizen rather than as a public employee. On this view, his speech should be protected under the First Amendment. Moreover, Guth's tweet does not present the kind of close case presented in Demers and there should be little credit to claims of qualified immunity.
Guth's "personal blog" (as the blog itself proclaims) deserves similar First Amendment protection. (The blog entry for September 16, 2013 entitled "Where Do You Stand?" discusses the Navy Yard incident).
Like the so-called "political rant" last week by another academic, this would make a terrific in class exercise for those teaching First Amendment.
Friday, September 20, 2013
The Brennan Center filed suit this week in federal court on behalf the Texas State Conference of the NAACP and the Mexican American Legislative Caucus of the Texas House of Representatives challenging SB 14, Texas's strict voter ID law. The Brennan Center's resource page on the case is here.
The suit this week comes soon after the United States Department of Justice filed its own suit against Texas to stop SB 14.
Recall that the Texas AG announced that the state would move to enforce SB 14 soon after the Supreme Court struck the coverage formula for the preclearance requirement in the Voting Rights Act this summer in Shelby County v. Holder.
The suit filed this week, like the DOJ suit before it, also seeks "bail-in" under Section 3(c) of the Voting Rights Act--that is, an order by the federal court for continued monitoring of the state that would operate very much like preclearance under Section 5 would have operated against a covered state like Texas (until the Court struck the coverage formula, leaving Section 5 a dead letter, in Shelby County).
Section 3(c) bail-in may be the next litigation target (after opponents succeeded in challenging the coverage formula for preclearance in Shelby County) for states like Texas facing VRA suits. Texas's responses to these suits will tell.
September 20, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Wednesday, September 18, 2013
In her commentary "Why Lawyers Become Bad Leaders" at the Chronicle of Higher Education, Deborah Rhode has several arguments supporting her position, but of great interest to ConLawProfs is her use of prominent lawyers Ted Olson and David Boies (pictured below) in the Proposition 8 litigation as a "case study in the limitations of lawyers as leaders."
Rhode notes that they were hired by a political strategist and a Hollywood producer to challenge Prop 8, and although they knew that leaders of gay-rights organizations were opposed to a federal challenge to Prop 8, they did not consult them before filing suit. She then discusses some of the issues with their litigation, noting "Olson and Boies clearly had something to gain from being lead counsel in a case of such prominence." Recall that even before the case reached the Supreme Court, the trial garnered much attention. Rhode writes:
Boies and Olson pursued a high-risk strategy against the advice of groups that had the greatest expertise and stake in the outcome. Most observers believe that a low-risk strategy of challenging Prop 8 at the ballot box would have been successful, as polls suggested that California voters had changed their views on the ban. Such a strategy would have exposed the gay-rights movement to less risk of an adverse Supreme Court precedent while accomplishing the same result.
That is not to deny the accomplishments of Boies and Olson as litigators, the advantages of having a prominent conservative like Olson supporting gay marriage, or the social commitments that underpinned their actions. But it is to underscore the difference between effective lawyers and effective leaders.
A quality of successful leadership is the capacity to work collaboratively. The most-effective leaders are those who can see past their own ambitions and desire for limelight.
Rhode's article is worth a read - - - and much consideration.
Sunday, September 15, 2013
Over at the New Yorker blog, Lincoln Caplan's piece, "Justice Ginsburg and Footnote Four" analyzes Ginsburg's discussion last week at the National Constitution Center, arguing that one of her statements "deserves more attention than it has gotten."
Ginsburg stated that her dissent last term in Fisher v. University of Texas Austin, regarding judicial review of affirmative-action plans of colleges and universities, "was inspired by a 1938 ruling not mentioned in the dissent—actually, by one of its footnotes." That most famous footnote - - - footnote four - - -of United States v. Carolene Products, is for many (including Caplan) the foundation of "a coherent justification for unelected justices to overturn legal decisions of elected officials when the fairness of the Constitution, and of democracy, is at stake."
Recall that the 1938 case of Carolene Products involved a federal statute regulating the shipment of "filled milk" (skimmed milk to which nonmilk fat is added so that it may seem to be like whole milk or even cream). It may be that this case was also on Ginsburg's mind during the oral arguments of another one of last term's cases: In her questioning of Paul Clement, who represented BLAG, in United States v. Windsor about the constitutionality of DOMA, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage." As we noted at the time, Ginsburg's allusion would have special resonance for those who recalled Carolene Products.
September 15, 2013 in Affirmative Action, Courts and Judging, Fifth Amendment, Food and Drink, Fourteenth Amendment, Fundamental Rights, Interpretation, Recent Cases, Sexual Orientation, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Thursday, September 12, 2013
Michigan, like most states, has a vanity license plate program under which residents can apply for a "personalized" letter or number combination rather than being randomly assigned one, upon the payment of an additional fee. Under M.C.L. § 257.803b(1), the secretary of state "shall not issue a letter combination that might carry a connotation offensive to good taste and decency."
In the complaint filed in Matwyuk v. Johnson, the plaintiff, represented by the ACLU of Michigan, alleges that the secretary of state's office denied his application for "INFIDEL" (or some variation) because it was "offensive to good taste and decency." The plaintiff claims the "offensive to good taste and decency" provision on its face and as applied violates the First Amendment as overbroad and the Due Process Clause of the Fourteenth Amendment as vague.
Matwyuk's factual allegations are especially compelling:
Mr. Matwyuk is a retired U.S. Army sergeant who was deployed as an American soldier in Iraq during the height of hostilities in that country. He and his fellow troops were constantly under attack by insurgent extremists whose word for the American soldiers was “infidel.” Seeking to reclaim or reappropriate this term as a source of American pride and patriotism, Sergeant Matwyuk and other soldiers came to embrace their identity as “infidels.” He and other American veterans proudly refer to themselves as “infidels” as a reminder of the bond they share as survivors of a bloody war in a hostile part of the world.
To honor the sacrifices of his fellow soldiers and to express his pride and patriotism as a veteran of the war in Iraq, Sergeant Matwyuk wishes to obtain a personalized Michigan license plate that reads “INFIDEL" . . . .
Unlike other license plate cases involving compelled speech in the usual license plate design or speciality license plate design schemes, here the issue is the very letters and numbers that individualize the identification of the license plate. Nevertheless, some of the same doctrines will be at issue, including the license plate being a "forum" that the government has opened for speech. Additionally, doctrines regarding interpretations of "decency" - - - as opposed to the established meanings of obscenity - - - will also be at issue. These doctrines tend to support the plaintiff's case.
Thursday, September 5, 2013
As reported in The Detroit News this afternoon, a Michigan State University creative writing professor and novelist, William S. Penn, has been relieved of his teaching duties by administration for his anti-conservative and anti-Republican remarks made during class.
Penn is a highly regarded writer and professor whose work often centers on his Native American/Anglo identity. For example, his 1996 creative nonfiction book, All My Sins are Relatives, won a North American Indian prose award.
Given the current constructions of the Supreme Court's 2006 decision in Garcetti v. Ceballos, Penn will have a difficult time showing he is speaking as a citizen rather than as a government employee and thus entitled to First Amendment protection. Indeed, the Sixth Circuit in Evans-Marshall v. Board of Education of Tipp City, which we discussed when it was decided in 2010, upheld the termination of a high school creative writing teacher who assigned Ray Bradbury's Fahrenheit 451. To explore that book’s theme of government censorship, she also developed an assignment based on the American Library Association's "banned books."
However, when the Sixth Circuit rejected the "academic freedom" argument of Evans-Marshall, it opined that such a concept is limited to universities and does not extend to high schools. As a university professor, Penn may have a better chance at making an academic freedom argument.
This could make a terrific in class exercise for ConLawProfs teaching First Amendment.
UPDATE: Take a look at the new Ninth Circuit opinion regarding academic freedom and Garcetti. This would substantially improve Penn's position if adopted by the Sixth Circuit.
UPDATE 2: Statement of the MSU AAUP Chapter in support of academic freedom (and further fact intvestigation).
Sunday, September 1, 2013
In the closely watched case of M.C. v. Aaronson, a minor claims a violation of both substantive and procedural due process under the Fourteenth Amendment by South Carolina doctors who performed genital surgery on a child in state custody (foster care). We discussed the case when the complaint was filed in May.
In a 15 page order United States District Judge David Norton denied the motions to dismiss by the various defendants. With regard to the substantive due process right, the judge found that "M.C. has articulated that defendants violated his clearly established constitutional right to procreation.," and as a "result, defendants’ assertion of qualified immunity must fail at this stage in the litigation." Given this conclusion, the judge stated he "need not consider M.C.’s arguments that defendants also violated his rights to privacy and bodily integrity."
As for the procedural due process rights, the judge again found that M.C. stated a claim, and that further analysis of the Matthews v. Eldridge factors was not appropriate at this stage.
But as the judge's opinion made clear, the hurdle of summary judgment looms:
Underlying this case’s complex legal questions is a series of medical and administrative decisions that had an enormous impact on one child’s life. Details of how those decisions were made, when they were made, and by whom are as yet unknown to the court. Whether M.C.’s claims can withstand summary judgment challenges, or even the assertion of qualified immunity at the summary judgment stage, is not for the court to hazard a guess at this time. It is plain that M.C. has sufficiently alleged that defendants violated at least one clearly established constitutional right – the right to procreate – when they recommended, authorized, and/or performed the sex assignment surgery in April 2006.
Indeed, this same order included a grant of M.C.'s request for expedited discovery.
Friday, August 30, 2013
The ACLU filed suit earlier this month in the Middle District of North Carolina challenging the state's new restrictions on voting under the Fourteenth Amendment and the Voting Rights Act. Recall that North Carolina, a previously partially covered jurisdiction under the Voting Rights Act, moved quickly after the Supreme Court struck the preclearance coverage formula in Shelby County v. Holder to introduce certain restrictions on the vote, knowing that the full state was free of the preclearance requirement. The ACLU's suit, League of Women Voters of North Carolina v. North Carolina, challenges certain provisions in the state's Voter Information Verification Act, or VIVA.
In particular, the case challenges restrictions on early voting in the state, restrictions on same-day registration, and restrictions on out-of-precinct voting in the state.
The plaintiffs seek declaratory and injunctive relief, and bail-in under Section 3 of the VRA. Bail-in allows a federal court to order continued monitoring of a state's proposed changes to its election laws upon a showing that the state's violations of the Fourteenth and Fifteenth Amendments justify such monitoring--much like Section 5 preclearance, except that the coverage formula isn't fixed.
After Shelby County struck the coverage formula in Section 4(b), and thus rendered Section 5 preclearance a dead letter, Section 3(c) bail-in is the only way that the VRA might authorize continuing federal preclearance of a state's proposed changes to its election laws. The ACLU sought Section 3(c) relief here, and the Department of Justice sought Section 3(c) relief in its recently filed case against Texas.
If the Texas AG's press release is any indication of a litigation position, Section 3(c) is the next likely provision in the VRA to go on the chopping block under a challenge that it exceeds congressional authority under the Fourteenth Amendment.
Wednesday, August 28, 2013
An ABA Journal article by Mark Walsh tells us that last Term, 2012-2013, was "another big one" for amicus curiae briefs at the United States Supreme Court: "Seventy of the 73 cases, or nearly 96 percent, that received full plenary review attracted at least one amicus brief at the merits stage."
The top amicus-attractors?
Shelby County v. Holder, the Voting Rights Act case, attracted 49 amicus briefs, including one from ConLawProf Patricia Broussard (second from right) and her students at FAMU College of Law, as pictured below.
Worth a look, especially for ConLawProfs writing, signing, or assigning amicus briefs.
August 28, 2013 in Affirmative Action, Cases and Case Materials, Current Affairs, Fifteenth Amendment, Fourteenth Amendment, Profiles in Con Law Teaching, Race, Recent Cases, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, August 27, 2013
Several media and legal outlets are running impressive commentaries on this fiftieth anniversary of the March on Washington for Jobs and Freedom led by Martin Luther King, Jr.
Over at ACS blog, Law Prof Atiba Ellis writes on "The Moral Hazard of American Gradualism: A Lesson from the March on Washington." Ellis states, "the question we must confront in 2013 is whether we have been tranquilized into the lethargy of gradualism concerning the work that needs to be done." Ellis highlights the Court's decisions last term in Shelby and in Fisher as examples of "the new American gradualism – retrogressive action under the cover of apathy, spurred by the myth of post-racialism and the supposed fear of constitutional overreach."
And on NPR's Morning Edition, journalist Michele Norris profiles Clarence B. Jones as an attorney and "guiding hand" behind the "I Have a Dream" speech, including the famous "promissory note" metaphor. However, Norris also highlights Jones' memoir Behind The Dream, which had "some unlikely source material." Indeed, Jones' memoir may be more accurate than most, since his memory was augmented by transcripts of every single phone conversation he had with King, courtesy of the FBI, in a wiretap authorized by Robert Kennedy as Attorney General. The NPR story has a link to the FBI archive on King.
August 27, 2013 in Affirmative Action, Books, Current Affairs, Executive Authority, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Scholarship, Theory, Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)
Monday, August 26, 2013
New Jersey's Republican Governor Chris Christie (pictured) signed New Jersey A3371 banning so-called sexual conversion or reparative therapy on minors into law earlier this month.
In his signing statement, Christie said:
At the outset of this debate, I expressed my concerns about government limiting parental choice on the care and treatment of their own children. I still have those concerns. Government should tread carefully into this area and I do so here reluctantly. I have scrutinized this piece of legislation with that concern in mind.
However, I also believe that on issues of medical treatment for children we must look to experts in the field to determine the relative risks and rewards. The American Psychological Association has found that efforts to change sexual orientation can pose critical health risks including, but not limited to, depression, substance abuse, social withdrawal, decreased self-esteem and suicidal thoughts.
I believe that exposing children to these health risks without clear evidence of benefits that outweigh these serious risks is not appropriate. Based upon this analysis, I sign this bill into law.
Despite Christie's careful articulation of his support for the bill, it was criticized and quickly challenged in a complaint filed in federal court in King v. Christie. The plaintiffs include Tara King, a licensed professional counselor, as well as National Association for Research and Therapy of Homosexuality (“NARTH”) and American Association of Christian Counselors (“AACC”). They argue that the law violates their First Amendment rights of free speech, rights of their clients to "receive information," and free exercise of religion, as well as clients' parental due process rights under the Fourteenth Amendment, in addition to concomitant rights under the New Jersey state constitution.
UPDATE: In Pickup v. Brown, the Ninth Circuit has upheld California's similar law banning sexual conversion therapy.
August 26, 2013 in Current Affairs, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fundamental Rights, Medical Decisions, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)