Friday, September 12, 2014

Senate Fails to Advance Campaign Finance Amendment

Senate Republicans unanimously blocked the campaign finance constitutional amendment proposed by Democrats.  The measure, S.J. Res. 19, failed 54 to 42, short of the 60 votes necessary to close debate and move to a vote on the merits. 

The proposed amendment would have overturned Citizens United and allowed Congress and state legislatures to regulate campaign contributions and spending.  It read:

Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.

Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.

Republicans argued that the measure infringed on free speech.  Senator Ted Cruz captured the point when he said that SNL producer "Lorne Michaels could be put in jail under this amendment for making fun of any politician."  That seems pretty unlikely, but still possible under the language.  Politifact gave it a "half-true," based on interviews with several ConLawProfs.

September 12, 2014 in Campaign Finance, Congressional Authority, First Amendment, Fundamental Rights, News | Permalink | Comments (1) | TrackBack (0)

Thursday, September 4, 2014

Seventh Circuit Declares Same-Sex Marriage Prohibitions of Two States Unconstitutional

The Seventh Circuit heard oral arguments in Baskin v. Bogan and Wolf v. Walker were just last week.  Today, the court issued its unanimous opinion affirming the district court findings that the same-sex marriage bans in Indiana and Wisconsin are unconstitutional. 

The Seventh Circuit panel enjoined the states from enforcing the laws and did not issue a stay.

Judge Richard Posner (pictured right) who is perhaps the most well-known judge not on the United States Supreme Court and who attracted attention with his comments at the oral argument, perhaps not surprisingly wrote the 40 page opinion. 

441px-Richard_Posner_at_Harvard_UniversityPosner begins by implying the state laws before the court are outliers:

Indiana and Wisconsin are among the shrinking majority of states that do not recognize the validity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are lawful.

The panel's decision is based entirely on equal protection doctrine under the Fourteenth Amendment.  Here's Judge Posner introducing the concept that

comes wrapped, in many of the decisions applying it, in a formidable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest. We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage.

However, Judge Posner's analysis draws heavily on his work in law and economics, implying that cost-benefit analysis deserves more attention that the "conventional approach"  - - - which "doesn’t purport to balance the costs and benefits of the challenged discriminatory law" - - - gives it.  For Posner:

Our pair of cases is rich in detail but ultimately straight- forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

9780674802803Judge Posner doesn't cite his own 1992 book, Sex and Reason, but he could have.  And the rhetorical style and much of the reasoning in this opinion echoes the book, which was widely debated.

Judges Williams and Hamilton apparently agreed.

If the cases go en banc or to the Supreme Court, it will be interesting to see if any of the law and economics rationales are prominent.

 

 

September 4, 2014 in Courts and Judging, Equal Protection, Family, Fundamental Rights, Gender, Opinion Analysis, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 3, 2014

Second Circuit Arguments on NSA Spying on C-Span

The Second Circuit heard oral arguments yesterday in a challenge to the NSA program involving mass collection of telephone call details under Section 215 of the Patriot Act.  The full argument was broadcast on C-Span and is available here.  (The embed code wasn't cooperating.)

The case, ACLU v. Clapper, is one of three cases challenging the program now pending in the circuit courts; the other two are Smith v. Obama (in the Ninth Circuit) and Klayman v. Obama (in the D.C. Circuit).  The Electronic Frontier Foundation has a backgrounder here, with links to case materials; the ACLU has a backgrounder on Section 215 here; the ACLU's page on ACLU v. Clapper is here.

Challengers in the cases argue that Section 215 violates the First and Fourth Amendments, but face justiciability questions before the courts will get to the merits.  That's because Section 215 prohibits a telecommunication company subject to a 215 order from telling its customers about it, so without more a customer wouldn't know.  Still, the district courts in Smith and Klayman ruled that the plaintiffs had standing based on the sheer breadth of the program.

September 3, 2014 in Cases and Case Materials, Courts and Judging, First Amendment, Fourth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 27, 2014

Sixth Circuit Rejects First Amendment Challenge by "Bible Believers" Excluded From "Arab International Festival"

A divided Sixth Circuit considered the problem of the hecklers' veto, as well as free exercise and equal protection claims, in its opinion today in Bible Believers v. Dearborn County, with the majority of the panel finding that the district judge's grant of summary judgment in favor of the government should be affirmed.

450px-Megaphone-redThe controversy arose when a group known as the "Bible Believers," Evangelical Christians, came to the Arab International festival on the streets of Dearborn, Michigan - - - as they had done the year before - - - to "preach."  Their speech included "strongly worded" slogans on signs, t-shirts, and banners (e.g., "Islam Is A Religion of Blood and Murder"),  a "severed pig's head on a stick" (intended to protect the Bible Believers by repelling observers who feared it), statements through a megaphone castigating the following of a "pedophile prophet" and warning of "God's impending judgment."   A crowd gathered, seemingly mostly of children, who yelled back and threw items at the preachers.  A law enforcement asked the Bible Believers to leave, and - when pressed - saying they would be cited for disorderly conduct: "You need to leave. If you don’t leave, we’re going to cite you for disorderly. You’re creating a disturbance. I mean, look at your people here. This is crazy!”  They were eventually escorted out. 

On the free speech claim, the opinion written by Judge  Bernice Donald found there was little disagreement that the Bible Believers "engaged in protected speech" and "that the Festival constituted a traditional public forum." 

More contentious, however, was whether the  government's actions were "content neutral."  The court first concluded that the operations plan was to "ensure safety and keep the peace" and thus to be evaluated under the standard of Ward v. Rock Against Racism.   But the court also extensively analyzed whether the heckler's veto principle was operative: "[l]isteners’ reaction to speech is not a content-neutral basis for regulation,” citing Forsyth Cnty. v. Nationalist Movement (1992).  Yet raising listener "reactions" circles back to the issue of whether the speech was protected and the court  discussed two Supreme Court cases from the mid-twentieth century—Terminiello v. City of Chicago, 337 U.S. 1 (1949), and Feiner v. New York, 340 U.S. 315 (1951)— as providing "some initial boundaries for the heckler’s veto doctrine."   In applying these cases, as well as Cantwell v. Connecticut, 310 U.S. 296 (1940) (as Sixth Circuit precedent), the court, referencing a video from Festival incident, found that there was actual violence and that law enforcement was simply discharging their duty to maintain the peace and removing the speakers for their own protection.

For Judge Eric Clay, dissenting, "law enforcement is principally required to protect lawful speakers over and above law-breakers."  Judge Clay also notes that it was the government that moved for summary judgment and that reliance on a video is problematical:

The key fact in our case, by contrast, is the question of Plaintiffs’ intent. That is not a fact shown on the videotape—it is an idea that existed in the mind of the speakers. Jurors might conceivably find an intent to incite based on inferences drawn from Plaintiffs’ sermonizing. We judges are prohibited from doing so.

While there are free exercise, equal protection, and municipal liability isses, the majority treats these summarily, and clearly the central issue is speech that provokes - - - and may be intended to provoke - - - a violent reaction from a crowd. 

August 27, 2014 in Equal Protection, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Religion, Speech | Permalink | Comments (0) | TrackBack (0)

Sunday, August 24, 2014

Ninth Circuit Upholds Ban on Solicitation at LAX

The Ninth Circuit ruled last week in International Society for Krishna Consciousness of California, Inc. (ISKCON) v. City of Los Angeles that the ban on continuous or repetitive solicitation at Los Angeles International Airport--including a ban on solicitation in parking lots and sidewalks--did not violate the First Amendment.

This final ruling ends this long-running case, which worked its way back and forth between the trial court, appeals court, and state courts for nearly two decades.

The provision at issue, Section 23.27(c) of the Los Angeles Administrative Code, bans solicitation in the LAX terminal, sidewalks, and parking lots.  ISKCON wished to solicit in these areas and argued that the ban violated free speech.

The Ninth Circuit applied familiar forum analysis and ruled that the terminal, surrounding sidewalks, and parking lots were non-public forums and that the government's reasons for the ban--reducing congestion and fraud at LAX--were legitimate.  The court said that changes to security and the resulting reduction in space available for passengers since 9/11 made the government's interests stronger than the interests in Int'l Soc'y for Krishna Consciousness, Inc. v. Lee (Lee I) (upholding the Port Authority's ban on solicitation in New York City's airport terminals).  ISKCON goes a step farther than Lee I, however, in that it specifically upholds the ban on sidewalks and parking lots, too.  As to sidewalks, the court said,

In all events, [the government's] interest in reducing congestion only heightened along LAX's narrow, oft-crowded sidewalks, which span but twelve feet in certain areas.  Furthermore, [the government's] interest in protecting against fraud and duress is just as strong on the sidewalks as it is inside the terminals.

The ruling aligns the Ninth Circuit with the Eleventh, which upheld a similar ban in ISKCON Miami, Inc. v. Metropolitan Dade County

August 24, 2014 in Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

State May Require Provider to Accompany Developmentally Disabled Client to Church

The Ninth Circuit ruled last week in Williams v. State of California that a state law requiring residential community care service providers to accompany developmentally disabled clients to religious services did not violate the First Amendment.  The very brief per curiam ruling simply incorporated the district court's order granting the state's motion to dismiss.

The plaintiffs in the case, residential community care facilities and employees, sued the state after the state cited the plaintiffs for violating their obligations to a client--in particular, for failing to accompany a client to Jehovah's Witness services in violation of the state's Lanterman Developmental Disabilities Services Act.  Several of the service providers' employees objected to accompanying the client to services, because, they argued, to do so would violate their own religious freedom.

The district court's opinion, adopted in whole by the Ninth Circuit, took the plaintiffs to task for sloppy pleading and argument, and went on to reject their Free Exercise and Establishment Clause claims.  As to the Free Exercise claim, the district court held that the Lanterman Act was a law of general applicability, and had a rational basis--"to allow developmentally disabled persons to approximate the lives of nondisabled persons."  As to the Establishment Clause claim, the court said that the Act had a secular purpose (same as above), a primary effect that neither advances nor inhibits religion (because it applies to all manner of community activities, religious or not, and to all religions equally), and no excessive government entanglement with religion. 

The plaintiffs' claims were weak, even non-starters, from the get-go, but they didn't help themselves with sloppy pleading, undeveloped arguments, and an apparent complete lack of response to certain court requests.  All this made it easy for the Ninth Circuit simply to adopt the district court's ruling as its own and to affirm the dismissal of the case.

August 24, 2014 in Cases and Case Materials, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Thursday, August 21, 2014

Florida Federal District Judge Declares State's Same-Sex Marriage Ban Unconstitutional

In his 33 page  opinion  today in Brenner v. Scott, Judge Robert Hinkle of the Northern District of Florida found that Florida's same-sex marriage bans in the constitution as Article I §27 and Florida Statutes § 741.04(1) violated the Fourteenth Amendment.

Judge Hinkle first determined that the "right asserted by the plaintiffs is a fundamental right as that term is used in due-process and equal-protection jurisprudence," noting that almost every court that has addressed the issue since the Supreme Court’s 2013 decision in Windsor has said the answer is yes, and concluded that that "view is correct."  Given that there is a fundamental right, he continued:

That leaves for analysis the second step, the application of strict scrutiny. A state may override a fundamental right through measures that are narrowly tailored to serve a compelling state interest. A variety of justifications for banning same- sex marriages have been proffered by these defendants and in the many other cases that have plowed this ground since Windsor. The proffered justifications have all been uniformly found insufficient. Indeed, the states’ asserted interests would fail even intermediate scrutiny, and many courts have said they would fail rational- basis review as well. On these issues the circuit decisions in Bostic, Bishop, and Kitchen are particularly persuasive. All that has been said there is not repeated here.

Judge Hinkle did take the opportunity, however, to specifically discuss the procreation argument, finding that "Florida has never conditioned marriage on the desire or capacity to procreate."

Like other judges, Judge Hinkle used Justice Scalia's dissenting language from Lawrence v. Texas to note that moral disapproval in the marriage context is the same as moral disapproval in the sodomy context. 

Judge Hinkle's opinion then analyzed the requirements for a preliminary injunction, finding them satisfied. But he also held that a stay was warranted; it would have been difficult to rule otherwise in light of the previous stays, including the one just yesterday by the United States Supreme Court.

August 21, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2014

The Next Campaign Finance Law to Go Down?

Judge Christopher R. Cooper (D.D.C.) earlier this week in Rufer v. FEC granted a plaintiff's motion to send its First Amendment challenge to the restriction on contributions to political parties to the en banc D.C. Circuit for consideration.  But in the same ruling, Judge Cooper denied a motion to temporarily enjoin the law.

The seemingly mixed ruling means that the court sees the challenge as both including "substantial, non-frivolous constitutional claims that are not clearly foreclosed by Supreme Court precedent" (thus meeting the statutory standard for appointment of an en banc circuit court under FECA) and "in tension with forty years of Supreme Court jurisprudence upholding contribution limits to political parties" (thus failing the likely-to-succeed-on-the-merits standard for a preliminary injunction).

In plain language, the ruling seems to reflect the court's view that while current Supreme Court doctrine supports contribution limits to political parties, that's likely to change. 

He's probably right.

But Judge Cooper's decision is not a ruling on the merits.  It only sends the constitutional question to the en banc D.C. Circuit ("after developing an appropriate factual record"), thus fast-tracking it to the Supreme Court, and presages the likely end result with this Supreme Court: the federal limit on contributions to political parties will almost surely go down.

The case was brought by the national and state Republicans and Libertarians challenging the federal restriction on base contributions to political parties.  The plaintiffs argued that they could segregate contributions for independent expenditures in separate accounts, and therefore avoid quid pro quo corruption or its appearance--the two government interests that the Court has said justify contribution limits to candidates and political parties.  Judge Cooper said it better:

This case sits at the confluence of two currents of First Amendment jurisprudence concerning federal campaign finance: the constitutional permissibility of limiting contributions to federal candidates and political parties, and the constitutional impermissibility of limiting contributions to independent entities whose campaign expenditures are not coordinated with candidates or parties.  Plaintiffs rest their challenge on the latter current; the FEC resists it on the former.

Judge Cooper ruled that the plaintiffs' free speech challenge to the contribution limits raised significant enough questions to justify sending the issue to the en banc D.C. Circuit, a procedure available under FECA designed to get important issues quickly before a full circuit court and ultimately the Supreme Court.  But at the same time, Judge Cooper denied a plaintiff's motion for a preliminary injunction, ruling that well settled (for now) Supreme Court precedent meant that the plaintiffs couldn't show that they were likely to succeed on the merits.

Taken together, the two sides of this ruling mean that the court understands the current state of the law, but can also read the tea leaves--which say that the law's likely to change.

Judge Cooper's decision isn't a ruling on the merits.  Still, it fast-tracks the case to the en banc D.C. Circuit and then, inevitably, to the Supreme Court.  It also presages the likely result in this Supreme Court: contribution limits to political parties will almost surely go down.

August 20, 2014 in Campaign Finance, Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

UDC Law Review Covers Civil Gideon

The University of the District of Columbia Law Review just issued its symposium edition on the right to counsel in civil cases, or Civil GideonThe full list of articles and links to the full texts are here.  John Pollock, staff attorney at the Public Justice Center in Baltimore and coordinator of the National Coalition for the Civil Right to Counsel, wrote the introduction, with a background on the Civil Gideon movement and updates on progress; a direct link to Pollock's article is here.

August 20, 2014 in Courts and Judging, Fundamental Rights, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, August 18, 2014

Second Circuit Orders Compliance Reports on Erie County Prisons Unsealed

The Second Circuit ruled today in U.S. v. Erie County, New York that a lower court's order sealing compliance reports on the treatment of prisoners in Erie County violated the First Amendment.  The ruling means that intervenor New York Civil Liberties Union will have access to the compliance reports.

This First Amendment dispute arose out of an earlier case brought by the United States against Erie County, New York, over the County's treatment of its prisoners.  In particular, the government alleged that Erie County failed to protect inmates from harm, failed to provide them adequate mental health care or medical care, and failed to engage in adequate suicide prevention.

The district court approved a settlement in that earlier case that included the appointment of compliance consultants.  Pursuant to the settlement, the consultants would file written reports with the court every six months on the County's progress, or not, in remedying the issues that led to the suit and settlement.  The court dismissed the suit but retained jurisdiction until the terms of the settlement were fulfilled.  The settlement agreement allowed either party to move to reopen the case at any time ("should issues requring [the] Court's intervention arise"), and either party could move for relief, or the court could issue relief itself.  The County moved, and the court ordered, that the reports be sealed.

The NYCLU moved to intervene and unseal the compliance reports.  The district court granted the motion to intervene, but denied the motion to unseal the reports, ruling that they were akin to settlement negotiation documents and therefore not subject to the First Amendment right of access to judicial documents.  The NYCLU appealed.

The Second Circuit reversed and ruled that the reports were covered by the First Amendment right of access.  The court held that both experience and logic suggest that the reports ought to be available to the public, and that the County's only reason for maintaining the seal--that they are part of a settlement agreement--didn't have any relevance here, because, after all, the case already settled. 

Here's the court:

Erie County wishes to keep the reports which measure its progress, or regress, under seal and, therefore, out of public view.  Yet every aspect of this litigation is public.  The United States Department of Justice is a public agency, which brought a claim before a public court . . . arguing that a public government, Erie County, failed to meet constitutional requirements in operating two public institutions, the Erie County correctional facilities.  And, critically, although a settlement is now in place, the public court retains jurisdiction over the dispute, and indeed may be moved, or move itself, to reinstate civil proceedings.  In a case where every aspect and angle is public, Erie County seeks, nonetheless, to keep the compliance reports under the darkness of a seal.  But the First Amendment does not countenance Erie County's position.  Neither experience nor logic supports sealing the documents, and the District Court erred in concluding otherwise.

August 18, 2014 in Cases and Case Materials, Courts and Judging, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 13, 2014

North Carolina Voter Challenge Moves Forward, but No Preliminary Injunction

Judge Thomas D. Schroeder (M.D. N. Carolina) rejected the plaintiffs' motions for a preliminary injunction against portions of the North Carolina Voter Information Verification Act.  But at the same time, Judge Schroeder rejected the state's motion to dismiss the case.  The ruling means that the case will go forward, but the law will stay in place in the meantime.  That'll give the plaintiffs a second bite at the apple, later, at trial; but the voting changes in the law will affect the upcoming fall elections.

We previously posted on the case, when it was filed, here.

Recall that North Carolina, a previously partially covered jurisdiction under Section 5 of the Voting Rights Act, moved swiftly to tighten its voting laws, and to impose new restrictions on voting in the state, right after the Supreme Court struck Section 5 in Shelby County.   Plaintiffs immediately filed suit, challenging some of these restrictions under Section 2 of the VRA, and the Fourteenth, Fifteenth, and Twenty-Sixth Amendments.  The United States filed its own case making similar arguments and asking the court for appointment of federal observers to monitor future elections in North Carolina under Section 3 of the VRA.  The court consolidated the cases.

The plaintiffs, taken together, challenged these provisions: Reduction of early voting from 17 to 10 days; elimination of same-day registration during the early voting period; a prohibition on the counting of provisional ballots cast outside of a voter's correct voting precinct on Election Day; expansion of allowable poll observers and voter challenges; elimination of discretion of county boards of election to keep polls open an additional our on Election Day in "extraordinary circumstances"; and elimination of pre-registration of 16- and 17-year olds.

In a lengthy and detailed ruling, Judge Schroeder concluded that the plaintiffs stated a claim (and thus denied the defendant's motion to dismiss), but didn't demonstrate a strong enough likelihood of success (on their challenge to the same-day registration and out-of-precinct provisional voting claims) or irreparable harm (on the other claims) to qualify for a preliminary injunction:

The only election slated before trial is the November 2014 general election.  As to [the Act's] reduction of early-voting days from 17 to ten, the parties acknowledge, and history demonstrates, that turnout for the fall election will likely be significantly lower than that in presidential years.  The evidence presented, in light of the law's requirements for counties to provide the same number of aggregate voting hours as in the comparable previous election under prior law, fails to demonstrate that it is likely the State will have inadequate polling resources available to accommodate all voters for this election.  The court expresses no view as to the effect of the reduction in early voting on other elections.  As to the voter ID provisions, Plaintiffs only challenged the "soft rollout," which the court does not find will likely cause irreparable harm, and not the photo ID requirement, as to which the court also expresses no view. 

Judge Schroeder also rejected the governments request for appointed observers.

Still, Judge Schroeder recognized the strength of the plaintiffs' claims in light of North Carolina's history, at one point writing, "Simply put, in light of the historical struggle for African-Americans' voting rights, North Carolinians have reason to be wary of changes to voting laws."

 

 

August 13, 2014 in Cases and Case Materials, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Monday, August 4, 2014

Alabama District Judge Declares State's Restrictive Abortion Law Unconstitutional as Applied

United States District Judge Myron Thompson, in a lengthy opinion in Planned Parenthood Southeast v. Strange, concluded that the staff-privileges requirement of Alabama’s Women’s Health and Safety Act of 2013, 1975 Ala. Code § 26-23E-4(c), is unconstitutional as applied to the plaintiffs.

In considering whether the hospital admitting privileges requirement, especially given that hospitals were not deeming physicians eligible to apply, Judge Thompson found it constituted an undue burden.  He did note and rely on last week's Fifth Circuit decision in Jackson Women's Health Organization v. Currier in which the appellate court concluded that the admitting privileges requirement that would operate to close the only abortion clinic in Mississippi was an undue burden, in part because a state could not shift its responsibilities to other states.  

The Alabama situation, however, was different as Judge Thompson noted:

This court does not need to resolve the legal issue of whether to consider out-of state clinics because, even if this court were to consider those clinics, it would reach the same conclusion. The out-of-state clinic nearest to any of the three cities at issue in this case is in Pensacola, Florida, approximately 50 miles away from Mobile. The Columbus, Georgia clinic is approximately 80 miles away from Montgomery. A woman in Mobile traveling to Pensacola or in Montgomery traveling to Columbus would still face the same threshold difficulties related to losing an abortion clinic in her home city; she would still have to overcome the challenges of the first 50 miles. Furthermore, the record does not support the conclusion that the Pensacola and Columbus clinics could actually accommodate an influx of patients from Alabama, and, in fact, the evidence from the Huntsville and Tuscaloosa clinics, discussed below, shows that it is not always easy for a clinic to increase capacity and suggests that the out-of-state clinics may not be able to treat large numbers of new women from Alabama.

The court also observed that if it looked outside the state's borders, it should not only look south and east but west as well.  West of Alabama is Mississippi, and the court duly cites Jackson Women's Health Organization.

780px-Map_of_Louisiana,_Mississippi_and_Alabama_constructed_from_the_latest_authorities_(8347521956)

[image via]

As the judge clarifies, he "reaches no conclusions on these matters, but hastens to point out that an out-of- state analysis is both much more complicated than the State suggests and potentially harmful, on balance, to the State’s case."

 Moreover, the judge refused to deem the Fifth Circuit's decision in Abbott (on Texas's HB 2) as setting a per se rule that 150 miles of travel was not an undue burden.  Instead, he found that the consideration of undue burden should be very specific and focused on the undue burden that the Alabama regulation would have on urban women rather than rural women.

The court carefully considered the state's two proffered interests, the relationship of those interests, and then considered the undue burden, and anchored the conclusions in the testimony that is extensively discussed.
 
The judge is seeking additional "input" from the parties before fashioning final relief, but it will remain to be seen whether the Eleventh Circuit finds either of the approaches of the Fifth Circuit - - - Abbott or Jackson Women's Health Organization - - - when the Alabama case is appealed.

August 4, 2014 in Abortion, Due Process (Substantive), Fundamental Rights, Gender, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 29, 2014

Divided Fifth Circuit Upholds Preliminary Injunction Against Mississippi's Restrictive Abortion Law HB 1390

A panel of the Fifth Circuit in its opinion today in Jackson Women's Health Organization v. Currier upheld the district judge's injunction against the enforcement of a restrictive abortion statute known as  Mississippi HB 1390.

The statute required physicians performing abortions to have admitting privileges to a nearby hospital.   As the court noted, a similar provision in Texas (HB 2) was recently upheld by the Fifth Circuit in Planned Parenthood of Texas Surgical Providers v. Abbott. As to the rational basis of such a law, the panel stated it was "bound" by Abbott as precedent to accept that the Mississippi statute survives a constitutional challenge.

1024px-Welcometomississippi_i-20Regarding undue burden, however, the panel majority, in an opinion by Judge E. Grady Jolly  (who interestingly hails from Mississippi) and joined by Judge Stephen Higginson, the effects of HB 1390 were relevant in this as-applied challenge.   In assessing the undue burden, the court found it highly relevant that “if enforced, the admitting privileges requirement would likely require JWHO, the only currently licensed abortion facility in Mississippi, to lose its license.”   The panel rejected the State's attempt to "walk back" this statement - - - which is actually a quote from the State's opening brief - - - as "too little, too late."  Additionally, the majority found it important that the hospitals had rejected the physicians' applications for admitting privileges based on the fact that the physicians performed abortions.

 The central - - - and exceedingly interesting - - - question of the undue burden analysis is the relevance of the clinic's status as the only abortion clinic remaining in Mississippi.  The State argued that there is no undue burden because women could travel to another state and many of these distances would not be unduly burdensome in and of themselves.  Recall that in Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992) the plurality opinion rejected the contention that traveling long distances constituted an undue burden.  But, as Judge Jolly notes, there was no suggestion that women should have to go to neighboring states in Casey or in any other opinion, and there is at least one circuit court opinion that finds it "dispositive" that women had to leave the state to exercise their constitutional right. 

Additionally - - - and this is the interesting part - - - the court relies upon State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) in the United States Supreme Court rejected Missouri's argument that its failure to admit an African-American man to its law school was essentially cured by its offer of a tuition stipend to allow Mr. Gaines to attend law school in another state.  Here's the passage from Gaines that Judge Jolly finds worthy of quoting at length:

[T]he obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. . . . That obligation is imposed by the Constitution upon the States severally as governmental entities, —each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system.

Id. at 350.  Judge Jolly admits that Gaines can be distinguished, but finds Gaines nevertheless determinative: " a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights." 

In a lengthy and somewhat vehement dissent - - - complete with quotations from Albert Camus - - - Senior Judge Emilio Garza finds many things to criticize in the majority's opinion, including the majority's failure to recognize there is not sufficient state action for a constitutional claim (it is the hospitals denying admitting privileges rather than the statute that are the cause); the majority's failure to honor the distinction between equal protection (as in Gaines) and due process (in the abortion context); the majority's belief that there is relevance to crossing state lines (given the constitutional right to travel across state lines articulated in Saenz v. Roe); the majority's failure to recognize that Casey is nothing more than a "verbal shell game" (quoting Justice Scalia's dissent in Casey); the majority's recognition of the "liberty" interest (quotes in original) in the Due Process Clause; and the majority's participation in "aggrandizement of judicial power."   

But the central issue of federalism including not only states' rights but states' responsibilities raised by this opinion and litigation is one that merits close consideration.

July 29, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, July 28, 2014

Fourth Circuit: Virginia's Same-Sex Marriage Ban is Unconstitutional

Affirming the federal district judge's decision in February, a panel of the Fourth Circuit in a divided opinion has held in Bostic v. Schaefer that Virginia's same-sex marriage prohibitions are unconstitutional.

The majority opinion, authored by Judge Henry Floyd and joined by Judge Roger Gregory, notably finds marriage to be a fundamental right that encompasses same-sex marriage and applies strict scrutiny. 

Fourth Circuit map
The court's conclusion is that the "Virginia Marriage Laws" (including statutes and a state constitutional amendment)

violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples’ lawful out-of-state marriages.

At various times, the court blends Due Process and Equal Protection analysis and precedent, but both spring from its conclusion that "marriage" is a fundamental right and that "marriage" includes same-sex marriage.    After discussing Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley, the court notes:

These cases do not define the rights in question as “the right to interracial marriage,” “the right of people owing child support to marry,” and “the right of prison inmates to marry.” Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right. The Supreme Court’s unwillingness to constrain the right to marry to certain subspecies of marriage meshes with its conclusion that the right to marry is a matter of “freedom of choice,” Zablocki, 434 U.S. at 387, that “resides with the individual,” Loving, 388 U.S. at 12. If courts limited the right to marry to certain couplings, they would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed.

The court's use of "couplings" implicitly addresses a portion of the oft-called slippery slope argument that is raised by Judge Paul Niemeyer in his dissent: what would prevent this rationale from extending to polygamy?  The dissent also invokes incest, accusing the majority of "dictionary jurisprudence" when it (re)defines marriage to include same-sex marriage.  But of course, the definitional conundrum plagues the dissent as well, when it argues that certain qualities are "foundational" to marriage and other qualities are "irrelevant."  For the dissent, this is the "biological link between procreation and marriage," a link that does exist in the polygamous and incestuous marriages the dissent disapproves.

For the majority, after finding marriage a fundamental right deserving of strict scrutiny, the five governmental interests argued as supporting the marriage laws not surprisingly fail to pass constitutional muster:

  • (1) Virginia’s federalism-based interest in maintaining control over the definition of marriage within its borders,
  • (2) the history and tradition of opposite-sex marriage,
  • (3) protecting the institution of marriage,
  • (4) encouraging responsible procreation, and
  • (5) promoting the optimal childrearing environment.

 More surprising is that although these interests are raised by the parties the court calls the  "Proponents" of the Virginia marriage laws, there is little in the court's opinion that analyzes their standing to appeal.  The court does analyze the standing of the plaintiffs to sue the defendants George Schaefer III (in his official capacity as Clerk of Court for Norfolk Circuit Court) and Janet Rainey (in her official capacity as State Registrar of Vital Records).  And since these parties were indeed defendants, there may be little need for an extensive analysis of appellate standing as was necessary in the same-sex marriage cases decided by the United States Supreme Court in June 2013. Nevertheless, recall that the (new) Virginia Attorney General had decided during the district court litigation that the Virginia laws were unconstitutional and filed a notice of change of position; however the laws continued to be enforced. 

The Fourth Circuit thus joins the Tenth Circuit in holding that a state's same-sex marriage ban violates the Fourteenth Amendment.   While these circuit court opinions are divided, the dozen or so federal district judges who have considered the issue have been unanimous in reaching the same conclusion.

 

July 28, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, State Constitutional Law, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 23, 2014

Arizona Botches Un-Enjoined Execution

Arizona reportedly botched the execution today of Joseph Wood III, the condemned prisoner who won a preliminary injunction against his execution at the Ninth Circuit, but then lost when the Supreme Court vacated that order.

According to numerous sources, Wood gasped and snorted for nearly two hours after receiving the drug cocktail that Arizona used to kill him.  WaPo reports here.

Now with the benefit of hindsight, Chief Judge Kozinski's earlier dissent from the Ninth Circuit denial of a rehearing en banc has especial resonance.  In a brief opinion rejecting Wood's legal claim, Judge Kozinski also heavily criticized the way the federal government and states now administer the death penalty.  Take a look:

Whatever happens to Wood, the attacks [against the death penalty] will not stop and for a simple reason: The enterprise is flawed.  Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful--like something any one of us might experience in our final moments.  But executions are, in fact, nothing like that.  They are brutal, savage events, and nothing the state tries to do can mask that reality.  Nor should it.  If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive--and foolproof--methods of execution. . . .  The firing squad strikes me as the most promising. . . .  Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood.  If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn't be carrying out executions at all.

July 23, 2014 in Cases and Case Materials, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Colorado Federal Judge on Same-Sex Marriage Ban: Unconstitutional and Not Quite a Stay

In his relatively brief opinion today in Burns v. Hickenlooper, Judge Raymond Moore enjoined Colorado officials from enforcing or applying Article II, Section 31 of the Colorado Constitution and C.R.S. §§ 14-2-104(1)(b) and 14-2-104(2) as a basis to deny marriage to same-sex couples or to deny recognition of otherwise valid same-sex marriages entered in other states.

The injunction is supported by little Due Process or Equal Protection analysis; instead its determination is more than aptly supported by the mandatory precedent of the Tenth Circuit's decision in Kitchen v. Herbert.

More difficult than the merits issue was the procedural stay issue.  Judge Moore decided to issue only a temporary stay until Monday, August 25, 2014, to allow the parties to seek relief from the Tenth Circuit or the United States Supreme Court.  The judge noted that the Tenth Circuit had already spoken, but given the United States Supreme Court's stay regarding the Utah same-sex marriage case last week in Evans v. Herbert,  the directives regarding the appropriateness of a stay were less than clear.

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Etruscan inscriptions on a bronze sheep's liver as might be consulted by a haruspex via

As Judge Moore wrote:

Based on the most recent stay [in Evans v. Herbert], it appears to the Court that it may well be that a message is being sent by the Supreme Court. But this Court is not some modern day haruspex skilled in the art of divination. This Court cannot – and, more importantly, it will not – tell the people of Colorado that the access to this or any other fundamental right will be delayed because it “thinks” or “perceives” the subtle – or not so subtle – content of a message not directed to this case. The rule of law demands more.

For further analysis of the problem on stays in the same-sex marriage litigation, take a look at LawProf Nancy Leong's great discussion of the stay factors and how they apply in same-sex marriage litigation.

July 23, 2014 in Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Court Vacates Injunction Against Execution

The Supreme Court yesterday vacated the Ninth Circuit ruling over the weekend that ordered the delay of a scheduled execution until the condemned prisoner received details from the state about the method of execution. 

Recall that the condemned prisoner, Joseph Rudolph Wood III, argued that the state's failure to provide him information violated his First Amendment right to receive information about the method of execution.  The Ninth Circuit agreed--or at least agreed that he had a likelihood of success on the merits, or that he raised a "serious question" on the merits--and granted a preliminary injunction.

The Supreme Court's order vacates that ruling.  It means that the execution can go forward without the information.

The order was short and unsigned, with no real legal analysis:

The application to vacate the judgment of the United States Court of Appeals for the Ninth Circuit granting a conditional preliminary injunction, presented to Justice Kennedy and by him referred to the Court, is granted.  The district judge did not abuse his discretion in denying Wood's motion for a preliminary injunction.  The judgment of the United States Court of Appeals for the Ninth Circuit reversing the district court and granting a conditional preliminary injunction is vacated.

July 23, 2014 in Cases and Case Materials, Courts and Judging, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Monday, July 21, 2014

Ninth Circuit Delays Execution Until Condemned Gets Information

The Ninth Circuit on Saturday ordered the delay of a scheduled execution until the condemned prisoner gets information about the two-drug cocktail that Arizona plans to use.  The court ruled (on a motion for a preliminary injunction) that Joseph Rudolph Wood III had a likelihood of success on the merits, or that he raised a "serious question" on the merits, that the state's denial of information violated the First Amendment. 

The order comes on the heels of a ruling last week by a California federal district judge that the death penalty violates the Eighth Amendment.  The court's opinion noted the recent botched executions in Oklahoma and Ohio in recognizing the need for publicity and public scrutiny of methods of execution.

The court held that Wood likely had a First Amendment right to information about the cocktail.  The court said that this right derived from the First Amendment right to information about different stages the criminal process, and in particular the right to view executions in California First Amendment Coalition, a Ninth Circuit case that says that "the public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber . . . ."

The court also looked to historical practice in transparency in execution methods.  It said that the "evidence does not conclusively establish a historical tradition of public access to the sources of lethal injection or the qualifications of executioners," but still

such exhaustiveness is not required at the preliminary injunction stage.  Instead, we ask only whether Wood raises "serious questions" going to the merits.

Answer: Yes, he does.

The ruling means that Arizona has to provide more particular information about its method of lethal injection before it can execute Wood.  The ruling is a victory for transparency in executions and will likely contribute to the growing public pressure against the death penalty.

July 21, 2014 in Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Saturday, July 19, 2014

No Constitutional Damages for Victims of Rape in Military

The D.C. Circuit ruled on Friday that survivors of rape and sexual assault in the military did not have constitutional damage claims against military officers who failed to address the prevalence of sexual misconduct and retaliation in the Navy and Marine Corps, even in the face of congressional mandates to take action.  (The plaintiffs did not sue their assailants in this case; instead, they sued higher-ups for perpetuating and grossly mismanaging the problem.)  The ruling means that this avenue of relief--the constitutional tort--is unavailable, and that survivors will have to look elsewhere for a remedy.

The three-judge panel declined to apply a Bivens remedy to the survivors' claims that officers violated the First, Fifth, and Seventh Amendments.  (A Bivens remedy would have allowed the survivors to sue the officers for monetary damages, even though there's no statutory authorization for such a suit.)  The court said that "special factors" counseled against a Bivens remedy.  (The court did not say whether other avenues of relief were available, the other part of the Bivens inquiry.)  In particular, the court wrote that "the military context" and "Congress's extensive legislation on this specific issue" were "special factors that counsel decisively against authorizing a Bivens remedy."

The court rejected the plaintiffs' argument that rape and sexual assault were not "incident to service," and that therefore the military context shouldn't foreclose a Bivens remedy.  The court said that the plaintiffs did not sue their assailants for rape and sexual assault; instead, they sued higher-ups for creating and failing to change a hostile environment--"a decade's worth of military management decisions," which, according to the court, is exactly the kinds of military decisions that fall outside Bivens's scope.

The court also rejected the plaintiffs' argument that officers ignored Congress in failing to establish an investigatory commission and failing to create a database.  The court said that Congress's extensive regulation of the issue, without creating a statutory civil damages remedy, was telling, and that it would violate separation-of-powers principles for the courts to step in and create a remedy when Congress declined.

The ruling aligns with the Fourth Circuit's Cioca v. Rumsfeld and adds to the recent line of cases rejecting Bivens claims for military torture, including Doe v. Rumsfeld, Vance v. Rumsfeld, and Lebron v. Rumsfeld.  In other words, it adds to the well established body of law that says that courts defer entirely  to the military in defining the kinds of military actions that fall outside of Bivens--even when those actions quite clearly have nothing to do with running a good ship.

July 19, 2014 in Cases and Case Materials, Congressional Authority, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Friday, July 18, 2014

Tenth Circuit on the Oklahoma Same-Sex Marriage Ban

What does the Tenth Circuit Court of Appeals panel decide in its 106 page divided opinions in Bishop v. Smith?  It's complicated.  

But essentially the Tenth Circuit affirms the district judge's opinion finding the Oklahoma ban on same-sex marriage unconstitutional and extends to Oklahoma its own ruling in Kitchen v. Herbert (by this same panel) from a few weeks ago finding Utah's same-sex marriage prohibition unconstitutional.

Screen Shot 2014-07-18 at 2.04.37 PMThe complications are caused in part by the procedural posture of the case.   For the majority opinion, authored Judge Carlos Lucero, and joined by Judge Jerome Holmes (as was Herbert v. Kitchen),  the major issue was the standing of the plaintiffs, specifically on the "redressability" prong of standing.  Recall that Oklahoma has both a constitutional amendment and a statute limiting marriage to "a man and a woman" and that the Oklahoma constitutional amendment not only prohibits same-sex marriage but prohibits its recognition even if valid in another state.

The plaintiffs, in a lawsuit filed in 2004 soon after the state constitutional amendment was adopted, challenged only the state constitutional amendment but not the statute. 

Affirming the district judge, the Tenth Circuit held plaintiffs nevertheless had standing because "the statutory prohibitions are subsumed in the challenged constitutional provision, an injunction against the latter’s enforcement will redress the claimed injury."  However, again affirming the district judge, the plaintiffs did not have standing to challenge the "recognition" portion of the constitutional amendment because the defendant - - - the clerk of court - - - could not redress the non-recognition injury. 

This problem as to the non-recognition of marriage claim is further complicated by the fact that the Tenth Circuit, in considering a dismissal of the Governor and Attorney General as defendants who could redress the injury stated - - - or seemed to state?  - - - that the Clerk of the Court was the correct defendant.  Thus, under a "law of the case" argument, the courts should be bound by that determination.  The Tenth Circuit panel decided it was not bound, in part because of the "new evidence" of an affidavit by the Court Clerk describing her duties.  It also rejected a nonseverability of the recognition and nonrecognition portions of the provision, finding that because it had not been made earlier it was waived. 

As to the merits, the majority held that it was governed by its ruling in Kitchen v. Herbert, although facts and arguments differed "in some respects," the "core holdings are not affected by those differences."  The panel majority did discuss two additional arguments: a Baker v. Nelson argument that lower courts were not free to consider doctrinal developments and the addition of a government interest that "children have an interest in being raised by their biological parents."

Judge Holmes concurred separately to discuss why "animus" was not an appropriate analysis.  Judge Holmes notes that the district judge "wisely" did not rely on animus, and that most of the other decisions invalidating same-sex marriage laws have "exercised the same forebearance."  But, he noted, several other district judges have relied on animus, citing Baskin v. Bogan, Henry v. Himes, DeLeon v. Perry, and Obergefell v. Wymyslo - - - interestingly none of which are in the Tenth Circuit - - - and he used the concurrence to endeavor "to clarify the relationship between animus doctrine and same-sex marriage laws and to explain why the district court made the correct decision in declining to rely upon the animus doctrine."

In his relatively brief partially dissenting opinion,  Judge Paul Kelly contended that there was no standing to challenge the constitutional amendment absent a challenge to the statute and would not reach the merits.  However, he also disagreed on the merits, as he did in the panel's decision in Kitchen v. Herbert.  For Judge Kelly, as he phrases it here:

Removing gender complementarity from the historical definition of marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process. Absent a fundamental right, traditional rational basis equal protection principles should apply, and apparently as a majority of this panel believes,  the Plaintiffs cannot prevail on that basis. Thus, any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.

This will be the heart of the matter when - - - rather than if - - - these cases reach the United States Supreme Court.  For now, however, the Tenth Circuit stayed its "mandate pending the disposition of any subsequently-filed petition for writ of certiorari."

July 18, 2014 in Courts and Judging, Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Sexual Orientation, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)