Monday, July 9, 2018
The Fourteenth Amendment was ratified on July 9, 1868.
Here's the text:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
[images National Archives via]
July 9, 2018 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, History, Privileges or Immunities: Fourteenth Amendment , Procedural Due Process, Race, Reconstruction Era Amendments | Permalink | Comments (0)
Monday, July 2, 2018
In his opinion in Gary B. v. Snyder, United States District Judge for the Eastern District of Michigan Stephen Murphy dismissed a complaint alleging constitutional violations in the public schools in Detroit.
After finding the plaintiff students had standing and that the complaint against Governor Snyder and other officials was not barred by Eleventh Amendment immunity, Judge Snyder dismissed the Due Process Clause and Equal Protection Clause claims.
On the Due Process Clause claim, Judge Snyder noted that the constitutional right at issue is framed as "access to literacy" which "speaks to an opportunity" rather than simply literacy which is an "outcome of education." Using this definition, Judge Snyder distinguished the complaint from landmark cases such as San Antonio Independent School District v. Rodriguez (1973), rejecting "education" as a fundamental right. Nevertheless, applying the "standard" test to determine a fundamental right from Washington v. Glucksberg (1997) — "fundamental rights are only those 'objectively, 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'"— even through the lens of Obergefell v. Hodges (2015), Judge Snyder reasoned that fundamental rights are generally only "negative rights."
Conceivably, a case like this one could be argued on either positive- or negative- right theories. As a positive right, access to literacy (i.e., a minimally adequate education) is so important that the state is compelled to provide it. As a negative right, access to literacy is so important that the state may not hinder Plaintiffs' attempts to secure it. ***
But a violation of negative rights is not what the Complaint truly seems to argue. The Complaint explains, in great detail, that the instruction and resources in Plaintiffs' schools are inadequate.
Judge Snyder reasoned that the Supreme Court's understanding of a "fundamental right," requires finding that neither liberty nor justice would exist absent state-provided literacy access, which would be "difficult to square with the fact that '[t]here was no federal or state-run school system anywhere in the United States as late as 1830.'" Thus, for Judge Snyder, the "ordered liberty" prong is tantamount to historical roots:
School districts at the time of the Constitution's ratification were formed 'when a group of farms came together and decided to construct a public building for schooling, where their children could gather and be taught reading, writing, and moral codes of instruction.' [citation omitted] The history evinces a deep American commitment to education, but runs counter to the notion that ordered society demands that a state provide one.
Thus, he concluded:
The conditions and outcomes of Plaintiffs' schools, as alleged, are nothing short of devastating. When a child who could be taught to read goes untaught, the child suffers a lasting injury—and so does society. But the Court is faced with a discrete question: does the Due Process Clause demand that a State affirmatively provide each child with a defined, minimum level of education by which the child can attain literacy? Based on the foregoing analysis, the answer to the question is no.
Judge Murphy concluded that the Equal Protection Clause claim was similarly not founded. The court repeats that there is no fundamental right and further finds that there is no racial classification because there to be a "relevant comparator school" requires not only that the school in question have a different racial composition that the 97% African-American schools in Detroit but also that the school "experienced relevant state interventions" like the schools in Detroit. Thus, rational basis scrutiny applies at its most deferential — whether "there is any reasonably conceivable state of facts that could provide a rational basis for the classification" — and the plaintiffs did not plead "specific decisions Defendants made concerning Plaintiffs' schools that could have been made differently" and were thus irrational.
The dismissal of the complaint makes it ripe for appeal.
[image: Paul-Constant Soyer, Little Girl Reading (1864) via]
Monday, June 25, 2018
The Court, without opinion, in Arlene's Flowers v. Washington, granted the petition for writ of certiorari, vacated the judgment of the Washington Supreme Court, and remanded the case for consideration in light of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n.
Recall that in 2017 the Washington Supreme Court unanimously upheld the Washington Law Against Discrimination including sexual orientation as applied to a business that refused to provide wedding flowers for a same-sex wedding. Artlene's Flowers had several First Amendment claims and on the Free Exercise claim, the court rejected Arlene's Flowers' argument that the Washington ant-discrimination law was not a neutral one of general applicability and should therefore warrant strict scrutiny. Instead, the court applied the rational basis standard of Employment Division, Department of Human Resources of Oregon v. Smith, which the Washington anti-discrimination easily passed.
Shortly after the Court's decision in Masterpiece Cakeshop, in which the Court found that the Colorado Civil Rights Commission’s treatment of the case had "some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his [the cakemaker's] objection," the florist in Arlene's Flowers, Baronnelle Stutzman, filed a Supplemental Brief seeking "at least" remand and alleging:
in ruling against Barronelle, the state trial court—at the urging of Washington’s attorney general—compared Barronelle to a racist “owner of a 7-Eleven store” who had “a policy” of refusing “to serve any black” customers. Pet. App. 107a–109a & 108a n.16 (emphasis added). The state, in short, has treated Barronelle with neither tolerance nor respect.
Thus the Washington Supreme Court is now tasked with determining whether there was hostility towards the Arlene's Flowers woner's religion, and if so, applying strict scrutiny.
Relatedly, in a challenge to Arizona's non-discrimination statute by a company, Brush & Nib, that sells "pre-fabricated and design artwork for home décor, weddings, and special events," an Arizona Court of Appeals found that there would be no Free Exercise claim in its opinion in Brush & Nib Studio v. City of Phoenix. Yet because Brush & Nib was a pre-enforcement challenge, the emphasis was on the statute rather than on Brush & Nib's actions.
In its 5-4 opinion in Abbott v. Perez, regarding the constitutionality under the Equal Protection Clause and the validity under the Voting Rights Act of the redistricting plan enacted by the Texas Legislature in 2013, the Court's majority decision by Justice Alito concluded that only one district in the redistricting plan was unlawful.
Both the majority opinion (joined by the Chief Justice, Kennedy, Thomas, and Gorusch) and the dissenting opinion by Justice Sotomayor (joined by Ginsburg, Breyer, and Kagan) first spent substantial effort on the jurisdictional issue which had also preoccupied the Court during the oral arguments. The jurisdictional question involves the status of the three judge court order and whether it is actually a reviewable order with the majority concluding it was reviewable and the dissent arguing it was not.
On the merits of the Equal Protection Clause issue Justice Alito's opinion for the Court faulted the three judge court's detailed decision for committing a "fundamental legal error" when it concluded the Texas legislature engaged on intentional racial discrimination violating the Fourteenth Amendment. For the majority, the three judge court did not recognize that when "a challenger claims that a state law was enacted with discriminatory intent, the burden of proof lies with the challenger, not the State," a standard with "special significance" in redistricting cases in which there is a "presumption of legislative good faith." This standard, the Court emphasized, does not change when there has been past racial discrimination but remains only one of the factors of showing intent under Village of Arlington Heights v. Metro. Housing Development Corp. (1997). Instead, the majority finds that Texas did have a legitimate intent, that of bringing the litigation about the redistricting to an end.
The dissenting opinion on the Equal Protection Clause issue criticizes the majority for selectively misreading (and misquoting) the three judge court opinion, arguing that the three judge court did not remove the burden from the challengers and did rigorously apply the Arlington Heights factors (contending that the majority did not). The "historical background" factor is an evidentiary source of intent which the majority recognized but did not credit, essentially substituting its own judgment for the three judge court.
On the Voting Rights Act (VRA) issue, which is limited to §2 given that the United States Supreme Court held §5 unconstitutional in Shelby County v. Holder, decided five years ago, the majority discussed the factors from Thornburg v. Gingles (1986), and essentially found that only one district — HD90 —was an impermissible racial gerrymander. A brief concurring opinion by Thomas, joined by Gorsuch, argued that §2 should not apply to redistricting. Again, the dissent argued that on the other districts the majority was essentially substituting its own judgment for that of the three judge court rather than reviewing the factual findings only for clear error.
The difference in the rhetorical approaches of the majority and the dissent is striking. In Alito's opinion for the Court, federal the application of the Equal Protection Clause in redistricting is "complicated," equal protection and the VRA pull in opposite directions, and in "technical terms" the Court has assumed that complying with the VRA is a compelling state interest. In Sotomayor's opinion for the dissenting Justices, the "Equal Protection Clause of the Fourteenth Amendment and §2 of the Voting Rights Act secure for all voters in our country, regardless of race, the right to equal participation in our political processes," a "fundamental right" which courts should remain vigilant in protecting including "curbing States’ efforts to undermine the ability of minority voters to meaningfully exercise that right."
Monday, June 4, 2018
In its opinion today authored by Justice Kennedy in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the Court found that the cakeshop owner's First Amendment Free Exercise Clause right was infringed upon by the Colorado Civil Rights Commission. Recall that the Civil Rights Commission had found the cakemaker violated the state equal accommodations statute protection on the basis of sexual orientation when the cakemaker refused to be employed for a same-sex wedding cake.
Justice Kennedy's opinion decides the controversy on the basis of Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), in which the Court found that the City of Hialeah's prohibition of killing animals was aimed at the religion of Santeria, especially given the numerous exceptions in the ordinance. Here, Kennedy's opinion for the Court rejects the ALJ's conclusion that the Colorado anti-discrimination statute was a neutral law of general applicability (and thus should be evaluated under a rational basis test), finding instead that the Colorado Civil Rights Commission in its adjudication of this case was not neutral but expressed hostility: "The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his [the cakemaker's] objection."
These expressions of hostility surfaced in the oral argument as we noted in a specific statement from Kennedy quoting one of the civil rights commissioners ( "freedom of religion used to justify discrimination is a despicable piece of rhetoric") which Kennedy asked counsel to disavow. This foreshadowed the opinion's quotation of the commissioner "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
The opinion then stated:
To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare [cakemaker] Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti- discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.
With the decision based on this, the Court admittedly sidesteps the more contentious issues and widespread issues of the case:
The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.
Perhaps another limiting factor is that the Court observes that the cakebaker's refusal occurred before Obergefell v. Hodges (2015) when Colorado law did not authorize same-sex marriages. However, the Court also pointed to language in Obergefell that religious objections to same-sex marriage are protected by the First Amendment.
Yet there is also the issue of arguably inconsistent rulings from the civil rights commission.
Justice Kagan, in a brief concurring opinion joined by Justice Breyer, stressed the fault found with the Civil Rights Commission that did not give the cakemaker's religious views “neutral and respectful consideration.” She argued that any "inconsistent" rulings could be explained: the cakemakers in other cases objected to placing words on the cakes that they found offensive; in Masterpiece, the cakemaker objected to the customers who were purchasing sentiments he would provide for others.
In dissent, Justice Ginsburg, joined by Justice Sotomayor, concluded that there was not sufficient evidence of "hostility" neither in the arguably inconsistent rulings nor in the statements. As to the statements,
Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.
First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties’ cross-motions for summary judgment. Third, the Commission heard Phillips’ appeal. Fourth, after the Commission’s ruling, the Colorado Court of Appeals considered the case de novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission?
For Ginsburg, then, this was "far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council."
Certainly, the Court's opinion rests on narrow grounds, perhaps unique to this case. But it nevertheless represents the Court chipping away at equality on the basis of sexual orientation.
Thursday, April 19, 2018
In its opinion in Planned Parenthood of Greater Ohio v. Himes, a unanimous Sixth Circuit panel, affirming the district judge, found Ohio 's Revised Code § 3701.034 unconstitutional under the unconstitutional conditions doctrine. The Ohio statute prohibited all funds it receives through six non-abortion-related federal health programs, such as the Violence Against Women Act, from being used to fund any entity that performs or promotes nontherapeutic abortions, or becomes or continues to be an affiliate of any entity that performs or promotes nontherapeutic abortions. The statute was aimed at Planned Parenthood and similar organizations.
The state relied upon cases such as Maher v. Roe and Rust v. Sullivan, but the court's opinion, authored by Judge Helene White, stated:
Plaintiffs do not claim an entitlement to government funds. They acknowledge the government’s right to define the parameters of its own programs, and have complied with all program requirements. What they do claim is a right not to be penalized in the administration of government programs based on protected activity outside the programs.
Instead, Judge White wrote, the correct precedent was Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI) (2013). Recall that in the "prostitution-pledge" case, the United States Supreme Court held unconstitutional under the First Amendment a provision of a federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. For the Sixth Circuit, AOSI "reiterated that the government may not require the surrender of constitutional rights as a condition of participating in an unrelated government program." In short,
the government cannot directly prohibit Plaintiffs from providing and advocating for abortion on their own time and dime, [ and thus ] it may not do so by excluding them from government programs for which they otherwise qualify and which have nothing to do with the government’s choice to disfavor abortion.
The Sixth Circuit found that the Ohio statute violated unconstitutional conditions based on constitutional infringements of both the Due Process Clause and the First Amendment. On the due process issue, the court found that the due process right to an abortion was at issue. The court rejected the "importation" of the undue burden standard into this analysis, but also reasoned that even under the undue burden analysis, especially in the United States Supreme Court's most recent abortion ruling in Whole Woman's Health v. Hellerstedt (2016), the statute violated due process.
On the First Amendment claim, relating to the Ohio statute's denial of funds to any organization that promotes abortions, again the Sixth Circuit quoted Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI): the government does not "have the authority to attach ‘conditions that seek to leverage funding to regulate speech outside the contours of the program itself.’ "
While there is some potential for a circuit split given the Seventh Circuit's opinion in Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Department of Health, 699 F.3d 962 (7th Cir. 2012), cert. denied, 569 U.S. 1004 (2013), the Sixth Circuit extensively analyzes the Seventh Circuit's opinion and concludes that because it was decided before Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI), it is no longer persuasive.
Tuesday, March 20, 2018
The United States Supreme Court heard oral arguments in National Institute of Family and Life Advocates (NIFLA) v. Becerra in which the Ninth Circuit upheld the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act).
The California law requires that licensed pregnancy-related clinics, also known as crisis pregnancy centers, or CPCs, must disseminate a notice stating the existence of publicly- funded family-planning services, including contraception and abortion, and requires that unlicensed clinics disseminate a notice stating that they are not licensed by the State of California. The California legislature had found that the approximately 200 CPCs in California employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”
The California law is not unique, but as we previously discussed when certiorari was granted, other courts have consider similar provisions with mixed conclusions.
The arguments raised several questions but one that recurred was the relevance of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) in which the Court upheld the informed consent provisions of a state law mandating "providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion." Justice Breyer's invocation of the maxim "sauce for the goose, sauce for the gander" pointed to the question of why California could not also mandate that CPC's provide notice. Arguing for the challengers, Michael Farris argued that the distinction was that the CPC's were not medical, although there was much discussion of this including the definition of medical procedures such as sonograms and pregnancy tests.
Appearing for neither party, Deputy Solicitor General Jeffrey Wall nevertheless strongly advocated against the California law. Near the end of Wall's argument, Justice Alito raised the subject of professional speech proposed by the United States brief, stating that it "troubles me" and seemed inconsistent with United States v. Stevens (2010) regarding not recognizing new categories of unprotected speech. (Recall that Alito was the lone dissent in the Court's conclusion that criminalizing "crush porn" violated the First Amendment). Alito also referenced the Fourth Circuit's "fortune teller" case, in which the court upheld special regulations aimed at fortune tellers. For Wall, laws that mandate disclosures by historically regulated professions such as doctors and lawyers should be subject only to minimal scrutiny.
The main issue raised regarding California's position was whether or not the statute was targeted at pro-life clinics, especially given the "gerrymandered" nature of the statute's exceptions. The Justices also directed questions to Deputy Solicitor of California Joshua Klein regarding the advertising requirements and disclaimers: must a facility state it is not licensed even if it is not advertising services, but simply has a billboard "Pro Life"?
Will it be sauce for the goose as well as for the gander?
The intersection of First Amendment principles and abortion jurisprudence makes the outcome even more difficult to predict than notoriously difficult First Amendment cases.
Wednesday, March 14, 2018
In its opinion in United v. Obak, the Ninth Circuit rejected a criminal defendant's argument that Article III §2 cl. 3 and the Sixth Amendment negated the jurisdiction of the United States District Court for the District of Guam over his trial.
In the panel opinion by Judge M. Margaret McKeown, the court "quickly dispense[d]" with the challenge to the district court's subject matter jurisdiction, noting that under the Organic Act of Guam, the District Court of Guam has the same jurisdiction as a district court of the United States.
However, the Ninth Circuit construed the jurisdictional challenge as also a constitutional venue challenge, which relied on two constitutional provisions:
Under Article III, Section 2, clause 3, “Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.” U.S. Const. Art. III § 2, cl. 3. The Sixth Amendment guarantees a right to a jury trial in “the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” U.S. Const. amend. VI.
The issue, however, is whether such constitutional rights extend to the residents of Guam, an "unincorporated territory," because apart from "certain 'fundamental rights,' constitutional rights do not automatically apply to unincorporated territories such as Guam" and Congress must extend other constitutional rights by statute.
The court held that under the Organic Act of Guam Congress had not extended Article III §2 to persons residing in Guam, citing a 1954 Ninth Circuit case which the court stated "still stands."
The court, however, noted that Sixth Amendment protections were extended to Guam in 1968, under the Mink Amendment revising the Guam Organic Act. Nevertheless, this very extension abrogated the challenge:
To give effect to the congressional extension of the Sixth Amendment to Guam, it makes no common sense to claim that Guam is not a state or a district such that venue cannot be laid in Guam. Otherwise, having the same “force and effect” in Guam as “in any State of the United States” would strip away part of the amendment as extended to Guam.
Thus, the court concluded that
To hold differently would require us to ignore the constitutional and statutory framework established for Guam, overturn established precedent, and effectively strip federal district courts located in unincorporated territories of the ability to hear certain cases.
Yet while the court's conclusion seems correct, it does illustrate the continuing diminished constitutional status of United States citizens residing in United States territories.
Monday, February 12, 2018
In its opinion in Perez v. City of Roseville, a panel of the Ninth Circuit reversed a district judge's granting of summary judgment to the government on a constitutional challenge by Janelle Perez to her termination from the City of Roseville after an internal affairs investigation into her "romantic relationship" with a fellow officer. The investigation noted that both officers "are married and have young children."
Authored by Judge Reinhardt, the opinion noted that its conclusion was required by Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983), in which the Ninth Circuit held that the city violated Thorne's constitutional rights when it relied on her private, non-job-related sexual conduct as a clerk-typist in refusing to hire her as an officer, without “any showing that [her] private, off-duty personal activities ... [had] an impact upon [her] on-the-job performance,” or contravened “specific policies with narrow implementing regulations.” Likewise, Roseville failed to "introduce sufficient evidence that Perez’s affair had any meaningful impact upon her job performance."
Interestingly, the Ninth Circuit identifies a circuit split on the issue: We recognize that, since Thorne, at least two other circuits have adopted rules that appear to be in some tension with our case. See Coker v. Whittington, 858 F.3d 304, 306 (5th Cir. 2017) (concluding Constitution not violated where two sheriff’s deputies were fired for moving in with each other’s wives before finalizing divorce from their current wives because the Sheriff’s policies were supported by a rational basis); Seegmiller v. LaVerkin City, 528 F.3d 762, 770 (10th Cir. 2008) (upholding termination of officer on basis of extramarital affair under rational basis test because there is no “fundamental liberty interest ‘to engage in a private act of consensual sex’”). > However, the Ninth Circuit rejects the "approach taken by the Fifth and Tenth Circuits" for two reasons. First, there is the "binding precedent" of Thorne:
Because the State’s actions in this case “intrude on the core of a person’s constitutionally protected privacy and associational interests,” we must analyze them under “heightened scrutiny.” Thorne, 726 F.2d at 470. Moreover, even if we were to agree that the Department’s action here need only satisfy rational basis review, Thorne explains that it cannot survive any level of scrutiny without either a showing of a negative impact on job performance or violation of a constitutionally permissible, narrowly drawn regulation. Id. at 471. Under our precedent, the Department must do more than cite a broad, standardless rule against “conduct unbecoming an officer.”
Second, the "Fifth and Tenth Circuits fail to appreciate the impact of Lawrence v. Texas, 539 U.S. 558 (2003), on the jurisprudence of the constitutional right to sexual autonomy."
"Lawrence did much more than merely conclude that Texas’ anti-sodomy law failed the rational basis test. Instead, it recognized that intimate sexual conduct represents an aspect of the substantive liberty protected by the Due Process Clause. As such, the constitutional infirmity in Texas’ law stemmed from neither its mere irrationality nor its burdening of a fundamental right to engage in homosexual conduct (or even private consensual sexual conduct, Rather, Texas’ law ran afoul of the Constitution’s protection of substantive liberty by imposing a special stigma of moral disapproval on intimate same-sex relationships in particular. As the Court explained, the liberty protected by the Due Process Clause must extend equally to all intimate sexual conduct between consenting adults, regardless of whether they are of the same sex or not, married or unmarried. . . . Lawrence makes clear that the State may not stigmatize private sexual conduct simply because the majority has “traditionally viewed a particular practice,” such as extramarital sex, “as immoral.” Thus, without a showing of adverse job impact or violation of a narrow, constitutionally valid departmental rule, the Constitution forbids the Department from expressing its moral disapproval of Perez’s extramarital affair by terminating her employment on that basis.
Thus, the Ninth Circuit holds that Thorne, decided 20 years before Lawrence was correct and the Fifth and Tenth Circuit opinions, both decided after Lawrence, do not give Lawrence proper effect.
Concurring, Judge Tashima stresses that Perez was a probationary police officer and thus the government need not have provided reasons. However, when the government did provide reasons "those reasons all arose in such short order after the internal affairs review that a reasonable inference may be drawn that they may have been pretextual." Additionally, the majority opinion held that the government had no right to qualified immunity because the rights were clearly established, again relying on Thorne, decided in 1983.
The majority panel opinion rejected a procedural due process claim and a gender discrimination claim.The court thus reversed the summary judgment in favor of the government and remanded the case for further proceedings given the factual disputes regarding the actual reasons Perez was termination.
Wednesday, February 7, 2018
The D.C. and Ninth Circuits this week ruled in two very different cases that plaintiffs lacked claims against federal officers or agents for violations of their constitutional rights. The two rulings both rely on a well established Bivens rule, that a plaintiff lacks a Bivens remedy if alternative statutory remedies are available. As such, the rulings don't restrict Bivens because of the Supreme Court's restrictive reading of Bivens last Term in Abbasi. Still, they underscore the limited reach of Bivens.
In the D.C. case, Liff v. Office of Inspector General, a former government contractor sued the Labor Department OIG and the Office of Personnel Management for violating his due process rights after those offices published reports that allegedly caused harm to him and his business. The court held that as a government contractor he had other statutory remedies, including the Tucker Act, the Contract Disputes Act, and the agency procurement protest process under the Federal Acquisition Regulation. As to his privacy claim, the court said the Privacy Act provided relief. The court was untroubled that these remedies wouldn't make him whole: "The question is whether alternative remedies exist, not whether they cover the full breadth of harm that a would-be Bivens plaintiff alleges."
In the Ninth Circuit case, Vega v. U.S., a federal inmate sued halfway-house operators for violating his First Amendment right to access to the courts and procedural due process after they filed a disciplinary report, without evidence, that resulted in his return to federal prison. (He eventually was returned to the halfway house.) The court held that he lacked a Bivens remedy, because the Administrative Remedy Program, the Unit Discipline Committee, or state-law claims could have provided relief.
Wednesday, January 17, 2018
In its opinion in Erotic Service Provider Legal Education and Research Project v. Gascon, the Ninth Circuit affirmed the district judge's dismissal of a constitutional challenge to California Penal Code § 647(b) which criminalizes the commercial exchange of sexual activity.
Judge Jane Restani, writing for the unanimous panel, rejected that claim that the United States Supreme Court's landmark decision in Lawrence v. Texas (2003) conferred a fundamental right to sexual intimacy under the Fourteenth Amendment's Due Process Clause. Restani's opinion declares that "whatever the nature of the right protected in Lawrence, one thing Lawrence does make explicit is that the Lawrence case “does not involve ... prostitution,” quoting from what some have called Lawrence's "caveat paragraph."
Given that there was no fundamental right at stake, the Ninth Circuit then applied rational basis and found there were several legitimate purposes found by the district court including links between commercial sex and trafficking in women and children; creating a "climate conducive to violence against women;" a "substantial link between prostitution and illegal drug use," and a link between commercial sex and "the transmission of AIDS and other sexually transmitted diseases." Judge Restani's opinion then summarily rejected the argument that the criminalization of commercial sex actually exacerbated the very problems it sought to remedy, stating that such assertions do not undermine the “rational speculation” sufficient to sustain the statute. The opinion relied on FCC v. Beach Communications (1993) for its highly deferential rational basis standard, despite the constitutional doctrine in Beach Communications being equal protection (albeit under the Fifth Amendment) rather than due process.
[image, "Female convicts at work in Brixton Women's Prison," UK 1862 via]
The Ninth Circuit was no more receptive to the other constitutional challenges. On the First Amendment free association claim, the court found that this was more properly analyzed as due process, and thus the rejection of the due process claim was dispositive. On the "right to earn a living" claim under due process, the court again relied on Lawrence's exclusion of commercial sex. Finally, on the First Amendment free speech claim, the court considered the solicitation of commercial sex as speech and analyzed it under the landmark test of Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y (1980). The court noted that the first prong regarding the exclusion for "unlawful activity" was determinative, but nevertheless continued, and briefly applied the other parts of the Central Hudson and found the statute did not violate the First Amendment.
In this 20 page opinion, the Ninth Circuit both manages to take the constitutional challenges to the criminalization of commercial sex seriously and to repudiate them.
Tuesday, January 9, 2018
The Sixth Circuit ruled today that voting rules on a proposed state constitutional amendment providing that the state constitution is not to be construed as protecting the right to abortion did not violate due process and equal protection. The ruling means that the state constitutional amendment can go into effect (although, given the federal right to abortion, it'll have no practical impact).
The case, George v. Hargett, arose when Tennessee voters approved an amendment to the Tennessee Constitution prohibiting construction of the state constitution to secure or protect the right to abortion or to require funding for abortion. Opponents of the measure sued, arguing that the voting rules for state constitutional amendments, found in Article XI, Section 3, of the state constitution, violated due process and equal protection.
Article XI, Section 3, provides:
if the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the State voting for Governor, voting in their favor, such amendment or amendments shall become a part of this Constitution.
The language is vague as to whether a vote must vote in both the gubernatorial election and on the amendment, or whether a voter could vote on the amendment without also voting in the gubernatorial election. (State practice said the latter.) So during the campaign, amendment supporters urged voters to vote for the proposed amendment, but not to vote in the gubernatorial election, in order to gain a numerical advantage. In contrast, amendment opponents urged voters to vote in both the gubernatorial election and on the amendment, in order to gain their own numerical advantage.
Tennessee voters voted in favor of the amendment. And for the first time in the state's history, the number of ballots cast on the amendment question exceeded the number of ballots in the gubernatorial election (reflecting the strength of the political campaign in favor of the amendment). This made the math easy: under Article XI, Section 3, the number of votes in favor of the amendment clearly exceeded half the number of total votes in the gubernatorial election.
Amendment opponents sued, arguing that Article XI, Section 3, under the prevailing interpretation, violated due process and equal protection. (They also argued for a different interpretation of Article XI, Section 3--that only those voters who also voted for governor could vote for the amendment--but the Sixth Circuit deferred to a final state court ruling that voters could vote on an amendment without also voting for governor.)
The Sixth Circuit rejected those claims. The court said that there was no due process violation, because no "voter's right to vote was burdened by government action." In short, the voting rules (set by the state court) allowed everyone to vote on the amendment, and counted all the votes on the amendment. The court said that there was no equal protection violation, because "[e]very vote cast--on the amendment and in the governor's race--was accorded the same weight."
The ruling ends the challenge and means that Tennessee's Constitution now contains a provision that prohibits an interpretation to secure or protect the right to abortion. But again: This'll have no practical effect on the right to abortion in the state, given the federal constitutional right to abortion.
In an extensive and well-crafted opinion in the consolidated cases of Common Cause v. Rucho and League of Women Voters v. Rucho, a three judge court found North Carolina's 2016 redistricting plan was unconstitutional partisan gerrymandering under the Equal Protection Clause, the First Amendment, and Article I §§ 2, 4.
Recall that the United States Supreme Court heard oral arguments on the issue of partisan gerrymandering in Gill v. Whitford in the earliest days of this Term. Recall also that in early December, the United States Supreme Court added another partisan gerrymandering case to its docket, Benisek v. Lamone.
Fourth Circuit Judge James Wynn's almost 200 page opinion for the majority, joined by Senior District Judge Britt, first discusses the facts involved in the North Carolina redistricting, some incidents and players of which will be familiar from the Supreme Court's opinion in Cooper v. Harris, a racial gerrymandering case challenging only two districts and arising from an earlier North Carolina redistricting.
This is the 2016 plan at issue in Common Cause and League of Women Voters:
Judge Wynn's opinion carefully resolves the question of standing and justiability. Important to the justiciability analysis is the issue of judicially manageable standards, and Judge Wynn writes a robust support for social science, noting that the "Supreme Court long has relied on statistical and social science analyses as evidence that a defendant violated a standard set forth in the Constitution" and citing cases under the Equal Protection Clause such as Yick Wo v. Hopkins, Brown v. Board of Education of Topeka, and City of Richmond v. J.A. Croson Co. (It is interesting in this regard to (re)consider Chief Justice Roberts's statements during the oral argument in Gill v. Whitford disparaging social science.)
Judge Wynn wrote:
To hold that such widely used, and relied upon, methods cannot provide a judicially manageable standard for adjudicating Plaintiffs’ partisan gerrymandering claims would be to admit that the judiciary lacks the competence—or willingness—to keep pace with the technical advances that simultaneously facilitate such invidious partisanship and provide an opportunity to remedy it.
On the merits of the Equal Protection Clause claim, Judge Wynn's opinion found that there must be an intent to discriminate on a partisan basis and that there was such an effect, and then the burden would shift to the governmental defendant to prove that a legitimate state interest or other neutral factor justified such discrimination. Here, Judge Wynn's opinion concluded that all were resolved in the challengers' favor. On the First Amendment claim, Judge Wynn considered several strands of doctrine:
Against these many, multifaceted lines of precedent, the First Amendment’s applicability to partisan gerrymandering is manifest. How can the First Amendment prohibit the government from disfavoring certain viewpoints, yet allow a legislature to enact a districting plan that disfavors supporters of a particular set of political beliefs? How can the First Amendment bar the government from disfavoring a class of speakers, but allow a districting plan to disfavor a class of voters? How can the First Amendment protect government employees’ political speech rights, but stand idle when the government infringes on voters’ political speech rights? And how can the First Amendment ensure that candidates ascribing to all manner of political beliefs have a reasonable opportunity to appear on the ballot, and yet allow a state electoral system to favor one set of political beliefs over others? We conclude that the First Amendment does not draw such fine lines.
In a brief separate opinion, concurring in part and dissenting in part, District Judge Osteen, Jr., disagreed as the standard for proving intent in Equal Protection but concluded the standard was met; disagreed on the merits of the First Amendment claim; and agreed that there was a violation of Article I.
Judge Wynn's opinion gave North Carolina until January 29 to submit a new plan to the Court, but one wonders if North Carolina will also be aggressively pursuing remedies at the United States Supreme Court, especially given Gill v. Whitford and Benisek v. Lamone.
Tuesday, October 24, 2017
In an Order today the Court brought the litigation in Hawai'i v. Trump on Muslim Ban/Travel ban 2.0 to a close. The Order provides:
We granted certiorari in this case to resolve a challenge to the temporary suspension of entry of aliens and refugees under Section 2(c) and Section 6 of Executive Order No. 13,780. Because those provisions of the Order have “expired by [their] own terms,” the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.
Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.
This Order replicates the Court's previous dismissal in IRAP v. Trump on October 10.
This does not end litigation on the issues.
Recall that so-called Muslim Ban/Travel Ban 2.0 has been replaced by so-called Muslim Ban/Travel Ban 3.0, Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017. Like the previous iterations, this has been enjoined by federal judges in Hawai'i (Hawai'i v. Trump) and in Maryland (IRAP v. Trump).
Friday, September 22, 2017
Judge Jerome B. Simandle (D.N.J.) today declined to halt New Jersey's bail-reform law. The law provides for alternative, non-monetary pretrial release options in order to give poor defendants (who often can't afford bail) a shot at pretrial release while still serving other criminal justice interests. The plaintiffs in the case argued that the law violated the Eighth Amendment, due process, and the Fourth Amendment.
The preliminary ruling, denying the plaintiffs' motion for a preliminary injunction, leaves the law in place, for now. But today's order isn't a final ruling on the merits.
The plaintiffs lawyered-up big time (Paul Clement appeared pro hac), suggesting that this is just the first step in their aggressive challenge to New Jersey's law. One reason for the attention to the case: Taking money out of the bail system also takes away a stream of revenue from corporations like plaintiff Lexington National Insurance Corporation. As more jurisdictions look to non-monetary bail options to avoid keeping poor, nonviolent defendants behind bars pending trial, bail providers stand to lose even more.
The New Jersey bail-reform law sets up a five-stage, hierarchical process for courts to follow in setting bail. It allows for pretrial release of certain defendants with non-monetary conditions, like remaining in the custody of a particular person, reporting to a designated law enforcement agency, home supervision with a monitoring device, and the like. In order to help navigate the process for any particular defendant, the court gets risk-assessment recommendations from a Pretrial Services Program. According to the court, in less than a year under this system, "[t]his reform has shown great success in placing persons into pretrial release who would previously have been held in jail for failure to meet monetary bail and because pretrial monitoring options were largely unavailable. As a result, many fewer defendants are being detained in jail as they await trial."
Using this system, a New Jersey court ordered plaintiff Brittan Holland released, but subject to home confinement (except for work), with an ankle bracelet for monitoring, weekly reporting, and no contact with the victim. (Holland was charged with second-degree aggravated assault and agreed to these conditions on his release in exchange for the state withdrawing its application for detention.)
Holland argued that the system deprived him of a right to have monetary bail considered as a primary condition of release, and that as a result his conditions amount to an undue restraint on his liberty. (He said that the conditions "severely restricted [his] liberty, disrupted [his] family life, made [him] concerned about [his] job security, and made [him] feel that [his] life is up in the air.") Plaintiff Lexington, a national underwriter of bail bonds, joined, arguing that the system would cause it to lose money.
The court ruled first that Holland had standing, but that Lexington probably did not. Here's how the court explained Holland's standing:
Holland claims that his injury is not simply the restriction on his liberty, but rather the imposition of that restriction after a hearing that violated his rights under the Fourth, Eighth, and Fourteenth Amendments. He claims that such injury will be sufficiently redressed should the Court order that a hearing respecting those constitutional rights (as he understands them) be held, regardless of the ultimate outcome of such a hearing. Should the Court order such a hearing to be held, the relief then would not be speculative. He claims that he was injured by the holding of a hearing that did not afford him his constitutional rights, including the alleged right to have monetary bail considered as a primary condition of release pending trial, and that ordering a new hearing that does afford him those rights will redress that injury.
As to Lexington, the court said that it failed to establish standing for itself (because it could only assert harms of a third party, someone like Holland), and that it likely failed to establish third-party standing (because criminal defendants don't face any obstacles in bringing their own claims--obviously, in light of Holland's participation in the suit). (The state also argued that Lexington lacked prudential standing, because its injury doesn't fall within the zone of interests of the statute. The court said that the state could raise that argument later, as part of a failure-to-state-a-claim argument.)
Next, the court said that Younger abstention was inappropriate, because "[p]laintiffs, here, do not seek to enjoin the state prosecution against Holland; instead, they challenge the procedure by which the conditions of pre-trial release during that prosecution was decided and seek an injunction ordering a different procedure."
As to the merits, the court held that the plaintiffs were unlikely to success on all claims. The court said that the Eighth Amendment doesn't guarantee monetary bail, and that Holland waived his right to it, anyway. It said that Holland received procedural due process, and that he had no right to monetary bail under substantive due process. And it said that conditions were reasonable under the Fourth Amendment, and, again, that Holland agreed to them, anyway.
September 22, 2017 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Procedural Due Process, Standing | Permalink | Comments (1)
Wednesday, September 20, 2017
In its opinion in McLaughlin v. McLaughlin (Jones), the Arizona Supreme Court interpreted the United States Constitution to require that the statutory presumption of parentage applies to a woman in a same-sex marriage in the same way as would to a man in a different-sex marriage.
The Arizona Supreme Court relied on the United States Supreme Court's 2015 decision in Obergefell v. Hodges as well as the Court's per curiam opinion a few months ago in Pavan v. Smith, reversing the Arkansas Supreme Court's divided decision to deny a same-sex parent's name be listed on the child's birth certificate. The Arizona Supreme Court in McLaughlin, echoing Pavan, quoted Obergefell as constitutionally requiring same-sex married couples be afforded the “constellation of benefits the States have linked to marriage.”
The majority opinion of the Arizona Supreme Court, authored by Chief Justice Scott Bales, rejected the interpretation of Obergefell advanced by Kimberly McLaughlin, the biological mother, that "Obergefell does not require extending statutory benefits linked to marriage to include same-sex couples; rather, it only invalidates laws prohibiting same-sex marriage." Instead, Chief Justice Bales wrote that that such a "constricted reading is precluded by Obergefell itself ad the Supreme Court's recent decision in Pavan v. Smith." Moreover, as in Pavan, the statute itself did not rest on biology but sought to sideline it. The marital presumption assigns paternity based on marriage to the birth mother, not biological relationship to the child. Thus, any differential treatment cannot be justified and the statute was unconstitutional as applied.
As a remedy, Judge Bales' opinion concluded that the extension of the presumption rather than striking the presumption was proper, relying on yet distinguishing the Court's recent decision in Sessions v. Morales-Santana. It was on this issue that one Justice dissented, contending that the court was rewriting the statute. Two other Justices wrote separately to concur on the remedy issue, noting that the majority must follow the United States Supreme Court and "circumstances require us to drive a remedial square peg into a statutory round hole," but "nothing in the majority opinion prevents the legislature from fashioning a broader or more suitable solution by amending or revoking" the statute.
Perhaps the Arizona legislature will see fit to abolish the marital presumption for all children?
September 20, 2017 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)
Thursday, August 10, 2017
Federal Judge Declares Louisiana's Restriction on Non-Native Born Marriage Applicants Unconstitutional
In an opinion in Vo v. Gee, Senior United States District Ivan L.R. Lemelle declared Louisiana's Act 436 violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
Act 436 amended the requirements to obtain a Louisiana marriage license so that an applicant born outside of the United States must submit a copy of the person's birth certificate under the raised seal or stamp of the vital statistics registration authority of the person's place of birth, with additional requirements if the document is not in English, and a valid and unexpired passport or an unexpired visa accompanied by a Form I-94 issued by the United States, verifying that the applicant is lawfully in the United States. Viet "Victor" Ahn Vo, naturalized as a United States citizen at the age of 8, was nevertheless denied a marriage license because he did not have a birth certificate. Vo was born in Indonesia in a refugee camp to parents who were Vietnamese nationals, relocating to Louisiana when Vo was three months of age.
On the equal protection issue, Judge Lemelle stated that the "birth certificate provisions that the Louisiana legislature enacted creates classifications that distinguish between United States citizens on the basis of their national origin," and thus merits strict scrutiny, requiring a compelling government interest which the statute serves by narrowly tailored means. Without discussing any interests put forward by the state, Judge Lemelle concluded that the "State of Louisiana fails to demonstrate in their opposition that this classification based on national origin furthers a compelling governmental interest." The judge therefore concluded there was an equal protection violation.
On the due process challenge, Judge Lemelle cited the "fundamental right to marry" under Obergefell v. Hodges as well as the Zablocki v. Redhail (1978) test of directly and substantially interfering with marriage as warranting strict scrutiny. The judge rejected Louisiana's claim that a subsequent amendment to the act that allows for a judicial waiver in some cases cures the constitutional defects or rendered the case moot. (Recall that in Zablocki itself the statute allowed a judicial waiver of the bar for past due child support payments as an impediment to marriage). Instead, Judge Lemelle noted that "the failure of the State of Louisiana to proffer any evidence of why this regulation passes constitutional muster" and held it violated due process.
The bulk of Judge Lemelle's relatively brief opinion addresses the more procedural issues of summary judgment and injunction standards, perhaps because the constitutional issues were clear as Louisiana seemingly conceded. Nevertheless, this is an important opinion regarding the issue of differential treatment for non-native born citizens.
Monday, June 19, 2017
In the United States Supreme Court unanimous decision in Packingham v. North Carolina, the Court found that the state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access commercial social networking sites, violated the First Amendment. This outcome was predictable given the then-eight Justices' skepticism during the oral arguments in February. Recall that Packingham was convicted of the North Carolina felony for his Facebook page on which he wrote " Thank you Jesus. God is good" regarding a result on his parking ticket.
The Court's majority opinion by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, is a mere 10 pages. The Court not only stresses the breadth of the North Carolina statute, but highlights the role of the Internet in "our modern society and culture" as vital to the First Amendment:
A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. . . .
While in the past there may have been difficulty in identifying the most important places (in a spatial sense)for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular. Seven in ten American adults use at least one Internet social networking service. . . .
While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and sofar reaching that courts must be conscious that what they say today might be obsolete tomorrow.
This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.
For the Court majority, even assuming the North Carolina statute was content neutral and should be analyzed under intermediate scrutiny, the statute "enacts a prohibition unprecedented in the scope of First Amendment speech it burdens." The Court noted that the present statute applies to all social networking sites including Facebook, LinkedIn, and Twitter, and that a state could possibly enact a more specific provision, such as prohibiting contacting a minor on social media.
In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.
While Justice Alito's opinion, joined by Chief Justice Roberts and Justice Thomas, agrees with the outcome, Alito criticizes Kennedy's opinion for the Court as not being sufficiently circumspect and cautious, and for engaging in "loose rhetoric." For Alito, the problem with the North Carolina statute is likewise its breadth: "its wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child." Among Alito's examples are Amazon.com, the Washington Post website, and WebMD. Yet Alito's opinion, just slightly longer than Kennedy's for the Court, found it important to argue that the entirety of the internet or even social media sites are "the 21st century equivalent of public streets and parks." In support of this, Alito argues that the internet offers an "unprecedented degree of anonymity."
Yet Alito's concurring opinion does not essentially disagree with the Court's finding that it would be possible for a state to craft a sufficiently narrow statute. The disagreement, however, may be in the room for states to maneuver in drafting such a criminal statute.
Monday, June 12, 2017
In Loving v. Virginia, decided June 12, 1967, the United States Supreme Court unanimously held that the Virginia statute criminalizing marriage between White and (most)non-White persons violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The case has become an iconic one, not only because it explicitly states that the Virginia law was "obviously an endorsement of the doctrine of White Supremacy," but also because it identifies the "freedom to marry" as "one of the vital personal rights essential to the orderly pursuit of happiness by free men."
Creighton Law Review hosted a symposium for the 50th anniversary of the case and the issue is just published.
Among the terrific articles is one that considers the Hollywood film, released last year, as well as the previous documentary. In the important contribution Filmic Contributions to the Long Arc of the Law: Loving and the Narrative Individualization of Systemic Injustice, Alanna Doherty argues that the film, and to a lesser extent the documentary "repackages the Lovings’ historic civil rights struggle against wider systemic oppression as a personal victory won by triumphant individuals through the power of love." This individualization through narrative, she argues, obscures the collective and civil rights struggle that is the ground of the action the film portrays. Likewise, the "White Supremacy" of the state is attributed to a few rogue individuals. Doherty argues that such individualization is not only limited, but also accounts for the post-Loving developments in equality doctrine regarding affirmative action:
Both Loving (the film) and Fisher [v. University of Texas at Austin] (the case) present their stories of individualized racial harm at the cost of avoiding meaningful recognition of systemic injustice. While in Loving this may seem positive due to the nature of the decision, and although in Fisher the court ultimately upheld the admissions policy, harmful ideological work is still being done to our socio-legal consciousness. In Fisher, the Court set injurious legal precedent in how it evaluates affirmative action programs—under intense scrutiny and with such little deference that fewer, if any, will pass constitutional muster. And because law is an embodiment of social practices interacting with cultural conceptions in noetic space, a trend in cinematic and legal narratives to shirk responsibility for holding oppressive institutions accountable only furthers a reciprocity with cultural ideology that moves the law away from helping those most vulnerable under it.
And yet, even as Loving (the film) is subject to critique as being limited, sentimental, and nostalgic, Doherty ultimately contends that the film has legal relevance given our fraught political landscape:
perhaps the cultural and legal imagining that needs to be done in the noetic space of 2017 is one grounded in the inspiring recognition of triumphant small-scale love. Maybe what Loving truly contributes to such a tumultuous cultural moment is the notion that not only must we continue to commit to fights we should not have to fight, but that if we want to take care of each other even when the law fails us, we must decide to keep loving.
June 12, 2017 in Affirmative Action, Conferences, Due Process (Substantive), Equal Protection, Family, Federalism, Film, Fourteenth Amendment, Fundamental Rights, History, Race, Scholarship, Supreme Court (US) | Permalink | Comments (2)
Friday, June 2, 2017
The Ninth Circuit ruled this week that a state fee imposed on firearms transfers--and, in particular, a portion of the fee that goes to fund enforcement efforts against illegal firearms purchasers--does not violate the Second Amendment.
The case involved a challenge to California's firearms transfer fee--a $19 fee on firearms transfers, about $5 of which goes to fund enforcement efforts against illegal firearms purchasers. The plaintiffs claimed that the $5 portion of the fee violated the Second Amendment, because it imposed a burden on the right to bear arms that wasn't closely enough related to an important government interest.
The court first assumed, without deciding, that the fee fell within the core of the Second Amendment. It applied only intermediate scrutiny, because the fee wasn't a substantial burden on anyone's ability to actually get a firearm. (The court noted that the plaintiff "has neither alleged nor argued that the [fee] has any impact on the plaintiffs' actual ability to obtain and possess a firearm.") (The court noted that it always applied intermediate scrutiny at the second step of the familiar Second Amendment test, but it appeared to hold open the possibility that higher scrutiny would apply to laws that "severely burden" the right.)
The court said that the fee easily met intermediate scrutiny:
Given the State's important interest in promoting public safety and disarming prohibited persons under the first prong of the test, there is a "reasonable fit" between these important objectives and the challenged portion of the . . . fee.
The ruling means that the fee stays on the books.