Monday, June 19, 2017

SCOTUS Rules NC Statute Restricting Internet for Sex Offenders Violates First Amendment

 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:

Freedom_-NO_2_SOPA
By Fekner - Own work, CC BY-SA 3.0 via

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. 

 

June 19, 2017 in Courts and Judging, First Amendment, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Sexuality, Supreme Court (US), Web/Tech, Weblogs | Permalink | Comments (0)

Monday, June 12, 2017

Daily Read: On the 50th Anniversary of Loving, A Look at its Portrayal in Film

 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.

Lovings

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.

[footnotes omitted].

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

Ninth Circuit Upholds Gun Transfer Fee

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.

June 2, 2017 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Tuesday, April 4, 2017

Federal Judge Enjoins Indiana's Ultrasound Law as Undue Burden

In her Opinion and Order in Planned Parenthood of Indiana and Kentucky v. Commissioner, Indiana State Dept of Health, Judge Tanya Walton Pratt enjoined Indiana Code § 16-34-2-1.1(a)(5), requiring a woman to have an ultrasound at least eighteen hours prior to an abortion. 

The judge found that Planned Parenthood of Indiana and Kentucky (PPINK) was likely to prevail on the merits under the undue burden standard rearticulated most recently in Whole Woman’s Health v. Hellerstedt (2016) regarding the substantive due process right to an abortion.  The new statute combined two prior Indiana laws – an ultrasound requirement and a time sensitive informed consent requirement – into one new law that required a woman seeking an abortion to obtain an ultrasound at least 18 hours before her abortion.  Indiana's  
principle rationale for the statute was fetal life, but the judge found that  “the State has not provided any convincing evidence that requiring an ultrasound to occur eighteen hours prior to an abortion rather than on the day of an abortion makes it any more likely that a woman will choose not to have an abortion.”  The judge was similarly unconvinced by the state's "alternative justification" of the "psychological importance" to the woman of viewing the ultrasound if she chose to do so. Even accepting the proposition that there could be psychological benefit, the evidence did not address the relevant question of the difference between "women having an ultrasound eighteen hours prior to the abortion as opposed to the day of the abortion." 

The judge found that the burdens imposed by the statute, including increased travel distances and delays in obtaining abortion services, were not balanced by the state's unsubstantiated interest.  Moreover, the judge found it relevant that the burdened women were mainly low-income women who would suffer financial burdens disproportionately, explaining that many women miss work because of these laws, and may have to reserve childcare for the days that they are away or traveling.  Additionally, the judge weighed delays, explaining increases in double booked appointments, as well as increases in delays for women struggling to meet timing requirements for their abortions.  The judge relied both on expert testimony as well as "specific examples" from nine woman relating to these burdens.

In sum, Judge Pratt concluded:

The new ultrasound law creates significant financial and other burdens on PPINK and its patients, particularly on low-income women in Indiana who face lengthy travel to one of PPINK’s now only six health centers that can offer an informed-consent appointment. These burdens are clearly undue when weighed against the almost complete lack of evidence that the law furthers the State’s asserted justifications of promoting fetal life and women’s mental health outcomes. The evidence presented by the State shows that viewing an ultrasound image has only a “very small” impact on an incrementally small number of women. And there is almost no evidence that this impact is increased if the ultrasound is viewed the day before the abortion rather than the day of the abortion. Moreover, the law does not require women to view the ultrasound imagine at all, and seventy-five percent of PPINK’s patients choose not to. For these women, the new ultrasound has no impact whatsoever. Given the lack of evidence that the new ultrasound law has the benefits asserted by the State, the law likely creates an undue burden on women’s constitutional rights.

The law was signed by now Vice President Pence when he was Governor of Indiana; it is uncertain whether the present state administration will pursue the same agenda.

h/t Juliet Critsimilios
 

April 4, 2017 in Abortion, Due Process (Substantive), Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Reproductive Rights | Permalink | Comments (2)

Monday, March 6, 2017

President Issues Revised "Travel Ban"

The President's revised Executive Order (March 6, 2017), entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," has substantial changes from the previous EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," and now enjoined by the Ninth Circuit in Washington v. Trump, as well as subject to an injunction in Virginia in Aziz v. Trump (note that the state of Virginia intervened). Our backgrounder on the issues is here.

This new EO, signed without the fanfare of the previous one, acknowledges that the previous EO "has been delayed by litigation" and does seek to remedy some of the problems with the EO.  For example, the scope is much narrower and the suspension of entry excludes "any lawful permanent resident" as well as some other categories. This will make the applicability of constitutional protections less clear.  While the Constitution protects non-citizens, it does not have global applicability.

The new EO avers that the previous EO was not a "Muslim Ban":

Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion.  While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion.  That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities -- whoever they are and wherever they reside -- to avail themselves of the USRAP [US Refugee Admissions Program] in light of their particular challenges and circumstances.

Nevertheless, this new EO does not mention otherwise religion. Of course, omitting references to "religion" or stating that an act is not motivated by animus does not end the inquiry.  Instead, there will most certainly be arguments that courts can consider the new EO as religiously-motivated under either First Amendment or Equal Protection Clause doctrine.

The new EO also changes the seven nations to six - - - omitting Iraq as a "special case."  This could also give rise to a national origin classification - - - is Iraq, with its "active combat zones" so different from Libya and Yemen which are described similarly?  The omission of Iraq is also problematical because the new EO recites as part of its justification this specific incident: "For example, in January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses." 

That relatively brief paragraph, §1(h), ends by stating that "The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation."  Issues with the Attorney General and counterterrorism aside, the objections of other government officials regarding the efficacy of the travel ban would certainly figure in any judicial measurement of the fit between the travel ban and the government purposes.

In terms of litigation and constitutional challenges, the first order of business will be procedural questions regarding whether the new EO can be substituted for the previous EO through amended complaints and other pleadings or will there need to be new cases.

 

 

 

March 6, 2017 in Equal Protection, Executive Authority, Fifth Amendment, First Amendment, Fundamental Rights, News, Race, Religion | Permalink | Comments (0)

Thursday, February 16, 2017

Washington Supreme Court Denies Constitutional Claims of Florist in Same-Sex Wedding Refusal

In its unanimous opinion in State v. Arlene's Flowers, the Supreme Court of Washington 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. 

The owner of Arlene's Flowers argued that the anti-discrimination statute was not applicable to her and if it did, it violated her constitutional rights of free speech, free exercise, and free association under the First Amendment as well as under the Washington state constitution.

On the First Amendment claims, the court found that Arlene's Flowers argument regarding compelled speech failed because the owner's flower arranging did not meet the threshold of expression.  The court relied on Rumsfeld v. FAIR to hold that the owner's

decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding. As [she] acknowledged at deposition, providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism. [She] also testified that she has previously declined wedding business on "[m]ajor holidays, when we don't have the staff or if they want particular flowers that we can't get in the time frame they need."  Accordingly, an outside observer may be left to wonder whether a wedding was declined for one of at least three reasons: a religious objection, insufficient staff, or insufficient stock.

Roses_-_Vincent_van_GoghThe court rejected the applicability of Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1985), as well as a litany of other United States Supreme Court cases regarding this threshold of expression.  In essence, the court emphasized that it was the sale of all flowers from her shop rather than any particular floral arrangement that was at issue in the case. 

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.

However, the analysis of free exercise under the Washington state constitution, article I §11 was not so simple because Washington has not always adopted the Smith standard when reviewing claims under its state constitution.  Nevertheless, the court found that even subjecting the Washington anti-discrimination law to strict scrutiny, the statute survives.  The court "emphatically" rejected the claim that there was no compelling interest of the state in flowers for weddings: the "case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches." 

Finally, the court rejected Arlene's Flowers' argument regarding free association, noting that all of the cases upon which she relied were not businesses.  As to the business itself, the court also upheld a finding of personal liability of the owner, the person who had refused service.

The United States Supreme Court has denied petitions for writ of certiorari in similar cases, but it is highly likely that a petition for certiorari will follow, especially given the nomination of Neil Gorsuch to the Court.

 

February 16, 2017 in Family, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Religion, Sexual Orientation, Speech, State Constitutional Law | Permalink | Comments (0)

Saturday, February 4, 2017

Federal District Judge Enjoins "Muslim Ban" in Washington v. Trump

In a Temporary Restraining Order, United States District Judge James Robart enjoined the federal government from enforcing sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban." 

Judge Hobart's Order is brief and concludes that there is a likelihood of success on the merits, although it does not specify which of the claims is likely to succeed.  Washington State's complaint contains 7 counts claiming violations of constitutional guarantees of Equal Protection, Establishment Clause, and Procedural Due Process, as well as statutory violations of the Immigration and Nationality Act (2 counts), Foreign Affairs and Restructuring Act, the Administrative Procedure Act (2 counts), and the Religious Freedom and Restoration Act (RFRA).

A_morning_wandering_around_the_Base_of_the_Mt._Baker_Ski_Area_(at_Mt_Shuksan)_-_(28474738420)
Mt. Baker, Washington, by Murray Foubister via

The Judge's finding that Washington faces the "immediate and irreparable injury" requirement for preliminary relief might also be a comment on the merits of Washington's standing (which we first discussed here) to bring the suit, and would be pertinent to the standing of the state of Hawai'i, which has also sued. Judge Robart found:

The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders.  In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States" operations, tax bases, and public funds.

Additionally, in the Order's one paragraph Conclusion, Judge Robart implicitly invokes the Marbury v. Madison aspects of the controversy.  Here is the entire last paragraph:

Fundamental to the work of this court is a vigilant recognition that it is but one of   three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this   country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. The narrow question the court is asked to consider today is whether it is appropriate to enter a TRO against certain actions taken by the Executive in the context of this specific lawsuit. Although the question is narrow, the court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country’s citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government. Accordingly, the court concludes that entry of the above-described TRO is necessary, and the States’ motion (Dkt. ## 2, 19) is therefore GRANTED.

 The morning after the Judge's Order, the President from his vacation home "tweeted" his disapproval, maligning the judge but seemingly committed to pursue further judicial process.
 

February 4, 2017 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Procedural Due Process, Race, Separation of Powers, Standing | Permalink | Comments (2)

Friday, February 3, 2017

Hawai'i Challenges the "Muslim Ban" in Federal Court

Joining the more than 15 other cases filed across the nation challenging Trump's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, now available on the whitehouse.gov site here, today Hawai'i filed a Complaint in Hawai'i v. Trump, accompanied by a  lengthy motion for Temporary Restraining Order and supporting Memorandum of Law.

Hawai'i asserts standing as a state based on its diversity in ethnic population, its high number of noncitizen residents including business owners and students, and its tourism-based economy. Washington state previously brought suit (with an oral ruling granting a TRO); Virginia is seeking to intervene in a lawsuit there.

The constitutional claims are by now familiar from suits such as the first one in Darweesh v. Trump and the one filed by CAIR, Sarsour v. Trump, including Equal Protection claims as we analyzed here. Other constitutional claims generally include First Amendment Establishment Clause and Free Exercise Clause and Procedural Due Process.  There have also been constitutional claims based on the Emoluments Clause (Mohammed v. United States, filed in U.S. District Court for the Central District of California, with Temporary Restraining Order entered) and a substantive due process right to familial association (Arab American Civil Rights League v. Trump , filed in U.S. District Court for the Eastern District of Michigan, with an injunction entered.  Again, Lawfare is maintaining a collection of all the primary source documents.

The Hawai'i complaint includes an innovative count alleging a violation of the substantive due process right to international travel. According to the supporting memo, the right to travel abroad is  “part of the ‘liberty’” protected by the Due Process Clause; as the Court stated in Kent v. Dulles (1958), “Freedom of movement is basic in our scheme of values.” The EO fails to satisfy the applicable due process standard for the same reasons it fails the equal protection analysis.

800px-Hanauma_Bay_Panoramic_View

The Attorney General has not been confirmed and the Acting AG was terminated by the President when she stated the Muslim Ban was indefensible, but the DOJ attorneys seem to be vigorously defending these suits.

February 3, 2017 in Equal Protection, Executive Authority, Family, Federalism, Fifth Amendment, First Amendment, Free Exercise Clause, Fundamental Rights, Race, Religion | Permalink | Comments (0)

Monday, January 16, 2017

Daily Read: Theorizing Protest on MLK Day

While we often think of protest and civil disobedience under the First Amendment, in her article Protest is Different in Richmond Law Review, Professor Jesssica West of University of Washington essentially argues that the First Amendment has not been a sufficiently robust defense criminal prosecutions.  Instead, she contends that we should reconceptualize protest relying upon evolving concepts of capital jurisprudence flowing from the Eighth Amendment contention that "death is different." She argues that similar to the complexity of the moral determination inherent in a sentence of death requiring a judgment of community condemnation, a criminal conviction resulting from acts of protest likewise involves deep and complex values of individualization and community conscience.

It's a worthwhile read on this Martin Luther King Day: "One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws." Martin Luther King, Jr., Letter from a Birmingham Jail, Apr. 16, 1963.

 

1024px-JFK_meets_with_leaders_of_March_on_Washington_8-28-63
Meeting Between Civil Rights Leaders and JFK after March on Washington;
pictured includes JFK, VP LBJ, MLK, and John Lewis via

 

 

 

January 16, 2017 in Association, Criminal Procedure, Current Affairs, First Amendment, Fundamental Rights, Race, Scholarship, Speech | Permalink | Comments (0)

Friday, October 28, 2016

Supreme Court Grants Certiorari in Glouster County School Board v. G.G.: Transgender School Case

The Court today has granted certiorari in Glouster County School Board v. G.G.  

As we previously discussed, while the constitutional issues are not in the foreground, it does involve important equality issues for transgender and gender nonconforming students as well as issues of Exceutive - - - or perhaps more properly, administrative agency - - - power.  

The Court's Order limits the grant to Questions 2 and 3, thus eliminating the issue of the viability of "Auer deference" from consideration.  The Questions presented in the certiorari petition are:

(1) Whether the court should retain the Auer v. Robbins doctrine despite the objections of multiple justices who have recently urged that it be reconsidered and overruled;

(2) whether, if Auer is retained, deference should extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and

(3) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

 

All_gender_restroom_sign_San_Diego_airport

image via

October 28, 2016 in Executive Authority, Federalism, Fundamental Rights, Gender, Sexuality, Supreme Court (US) | Permalink | Comments (0)

Wednesday, October 26, 2016

Divided Eighth Circuit Upholds Nursing Student's Dismissal for Facebook Posts

In its opinion in Keefe v. Adams, a divided panel of the Eighth Circuit upheld the dismissal of a student from the Associate Degree Nursing Program at Central Lakes College (CLC) in Minnesota.  Other students had complained about posts on Craig Keefe’s Facebook page and he was eventually removed from the program for :behavior unbecoming of the profession and transgression of professional boundaries."  Keefe challenged the constitutionality of the dismissal based on the First Amendment and procedural due process.  The district judge granted summary judgment for the university officials and the majority opinion, authored by Judge James Loken for the Eighth Circuit panel, affirmed.

The concerning posts involved other students in the class and group projects, including his objection to a fellow student changing the group presentation - "Not enough whiskey to control that anger" and calling another student a "bitch" for presumably reporting his Facebook posts.

Principles_of_modern_biology_(1964)_(20711036786)There was also this:

Doesnt anyone know or have heard of mechanical pencils. Im going to take this electric pencil sharpener in this class and give someone a hemopneumothorax with it before to long. I might need some anger management.

In a footnote, the court helpfully explains:

a hemopneumothorax is a “trauma” where the lung is punctured and air and blood flood the lung cavity; it is not a medical procedure.

College officials discussed the posts and Keefe originally deflected.  He was dismissed from the program under specific provisions in the Nursing Program Student Handbook which also refers to the Nurses Association Code of Ethics, including professional boundaries and "behavior unbecoming."  He appealed within the the college, citing failures of procedural due process, but his appeal was denied.

On the procedural due process issue, the majority concluded:

Viewing the summary judgment record as a whole, we conclude that Keefe was provided sufficient notice of the faculty’s dissatisfaction, an explanation of why his behavior fell short of the professionalism requirements of the Program, an opportunity to respond to the initial decision-maker, and an opportunity to appeal her adverse decision. Nothing in the record suggests that Keefe’s removal from the Nursing Program was not a careful and deliberate, genuinely academic decision.

Dissenting in part, Judge Jane Kelly argued that the dismissal decision was not "academic."  Instead, it was a disciplinary dismissal for which he argued the due process standard should be higher.  Judge Kelly highlighted one of the meetings with Keefe in which he was not given all the posts beforehand with "time to review the posts and formulate a response."  However, Judge Kelly contended that the college administrators were entitled to qualified immunity on the due process claim.

The First Amendment issue is the central one.  As Judge Loken's opinion for the majority notes, Keefe frames the issue categorically: "a college student may not be punished for off-campus speech," unless that speech is "unprotected by the First Amendment."  Judge Loken characterized this as an "extreme position" not adopted by any court.

The Eighth Circuit majority rehearsed some of the cases involving academic requirements for professionalism and fitness, including cases such as Ward and Keeton involving professional students' failure to comply with anti-bias requirements.  These principles, the court held, were equally pertinent to off-campus speech, especially given that the off-campus speech was "directed at classmates, involved their conduct in the Nursing Program, and included a physical threat related to their medical studies."

For the dissenting judge, it was important that Keefe's Facebook posts "were not made as part of fulfilling a program requirement and did not express an intention to break specific curricular rules."  As to the "threat," the dissenting judge argued that the district judge had failed to make findings that Keefe's statement qualified as a true threat.  For the dissenting judge, summary judgment was improper.

The split opinion might indicate that the case is a good candidate for en banc review and there were First Amendment groups as amici on behalf of the dismissed student.  Nevertheless, the Eighth Circuit opinion does comport with the trend of allowing professional educational programs latitude to "professionalize" students and to dismiss those who do not conform.

October 26, 2016 in First Amendment, Fundamental Rights, Opinion Analysis, Procedural Due Process, Speech | Permalink | Comments (0)

Tuesday, October 4, 2016

Ninth Circuit Denies En Banc Review in Sexual Conversion Ban Case

In the continuing - - - yet seemingly concluding - - - saga of challenges to the constitutionality of California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit's opinion today in Welch v. Brown revisited its August opinion upholding the law.  Today's opinion announces that the Ninth Circuit will not rehear the case en banc - - - "no judge of the court" having requested a vote on the petition for rehearing en banc - - - and issues an amended opinion.

The change from the August opinion is slight, adding an example in the opinion's description of the challengers' argument in one paragraph:

Plaintiffs first argue that, under the Establishment Clause, SB 1172 excessively entangles the State with religion. Their argument rests on a misconception of the scope of SB 1172. For example, Plaintiffs assert that Dr. Welch may not “offer certain prayers or quote certain Scriptures to young people” even “while working as a minister for Skyline Church” within “the four walls of the church . . ., while engaging in those religious activities.” The premise of this Establishment Clause argument is mistaken, and the argument fails, because SB 1172 regulates conduct only within the confines of the counselor-client relationship.

[Added language underlined; italics in both opinions].

With such a small revision, it would seem there was little contention about the case.  Recall that Welch itself is a sequel to Pickup v. Brown, in which the Ninth Circuit declined en banc review (albeit more divisively), to other First Amendment challenges to the California statute. Meanwhile, the Third Circuit in King v. Christie rejected a challenge to New Jersey's similar SOCE-ban statute.  The United States Supreme Court has denied certiorari in both Pickup and King, making prospects for a grant of certiorari in Welch v. Brown rather slim, especially for an eight Justice Court.

Psychotherapy-466987_1280

 [image via]

 

 

October 4, 2016 in Family, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0)

Friday, September 30, 2016

Alabama Chief Justice Roy Moore Suspended

In its 50 page opinion the Alabama Court of the Judiciary has suspended (former) Chief Justice Roy Moore for the remainder of his elected term on the Alabama Supreme Court. 

We've previously discussed the details of the judicial complaint and the Alabama Court of the Judiciary.  In short, Moore was charged with violations of the Alabama Canons of Judicial Ethics for his conduct in resisting same-sex marriage, involving federal court decisions of Searcy v. Strange, before the federal district court, finding Alabama's same-sex marriage ban unconstitutional in January 2015; Strawser v. Strange, before the federal district court, reiterating the previous finding and making a direct order in February 2015, after the United States Supreme Court had refused to grant a stay of the earlier Order; and Obergefell v. Hodges, decided by the United States Supreme Court and requiring states to grant same-sex marriages.  Chief Justice Moore's own rulings and orders essentially stated these federal court rulings did not apply in Alabama.

The Court of the Judiciary found that Moore lacked judicial integrity in numerous instances.  For example, regarding Moore's January 2016 Administrative Order to all probate judges that they continue to have a ministerial duty to enforce the Alabama marriage laws against same-sex couples, the Court found that it was "incomplete, misleading, and manipulative," and intentionally failed to include binding federal authority, the clear purpose of which was to order and direct "probate judges" - - - most of whom are not admitted to practice law - - - not to comply with federal law.  This is a clear problem under Cooper v. Aaron, which Moore knew.

The Court found that the proper sanction was removal of Moore from office without pay for the remainder of his term. (Terms of office are 6 years; Moore was elected to office in 2013).  This is not the first time Moore has been removed from office; he was also removed in 2003, but was re-elected ten years later.  This time, however, Moore will be over the age-cap for the Alabama judiciary by the time his suspension expires.

Moore can appeal to the Alabama Supreme Court - - - the very court from which he sat and has been suspended.  He not doubt will.

 

 

 

 

September 30, 2016 in Courts and Judging, Equal Protection, Fundamental Rights, Sexual Orientation | Permalink | Comments (0)

Wednesday, August 24, 2016

Ninth Circuit Upholds Upholds California Ban on Sexual Orientation Conversion Therapy Against Religion Clauses Challenge

In a sequel to the Ninth Circuit's 2013 decision in Pickup v. Brown upholding California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit upheld the same law against a facial challenge based upon the First Amendment's Religion Clauses in its relatively brief opinion in  Welch v. Brown.

The panel in Welsh - - - the same panel as in Pickup - - - held that the SB 1172 violated neither the Establishment Clause nor the Free Exercise Clause.  The panel rejected the challengers' interpretation of the law as applying to members of the clergy because the law specifically exempts religious clergy "as long as they do not hold themselves out as operating pursuant" to any therapist licenses. 

The panel also rejected the contention that the law has the primary effect of inhibiting religion. That some minors who seek sexual orientation conversion may have religious motivations does not rise to the level of an inhibition of religion, especially given that the law was not targeted at religious motivated conduct.  The panel noted that the law's legislative findings focused on "social stigmatization" and "family rejection" rather than religiosity.  The panel likewise rejected the Free Exercise Clause claim that the law was not neutral as to religion based on the same rationales and cited the Third Circuit's similar conclusion regarding New Jersey's prohibition of sexual conversion therapy in King v. Christie.

The court also reiterated its rejection of any "privacy" claim based on its previous analysis in Pickup.

So far, challenges to state prohibitions of sexual conversion therapy for minors have had little success.

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 [image via]

 

August 24, 2016 in Courts and Judging, Disability, Due Process (Substantive), Establishment Clause, Family, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation | Permalink | Comments (0)

Friday, July 1, 2016

Federal Judge Issues Preliminary Injunction Against Mississippi Law Seeking to Protect LGBT Discrimination

In a 60 page opinion in Barber v. Bryant, United States District Judge Carlton Reeves (pictured below) found Mississippi HB 1523, set to become effective July 1, constitutionally problematical under both the Establishment Clause and the Equal Protection Clause, and thus preliminary enjoined its enforcement.

The bill, Protecting Freedom of Conscience from Government Discrimination Act," sought to insulate the specific "sincerely held religious beliefs or moral convictions" that:
(a)  Marriage is or should be recognized as the union of one man and one woman;
(b)  Sexual relations are properly reserved to such a marriage; and
(c)  Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.

Judge Reeves characterized HB 1523 as a predictable overreaction to the Court's same-sex marriage opinion in Obergefell v. Hodges a year ago.  In discussing the debates around the HB 152 and its texts, Judge Reeves also noted that the challenges to HB 1523 were also predictable, providing his rationale for consolidating the four cases.

Judge Reeves then considered standing of the various plaintiffs as well as Eleventh Amendment immunity, followed by the established preliminary injunction standards which have at their heart the "substantial likelihood of success on the merits."

On the Equal Protection claim, Judge Reeves relied on Romer v. Evans, and found that the legislative history established animus in intent:

The title, text, and history of HB 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell. The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions. LGBT Mississippians, in turn, were “put in a solitary class with respect to transactions and relations in both the private and governmental spheres” to symbolize their second-class status.

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Judge Carlton Reeves via

Judge Reeves also found that the law would have a discriminatory effect.  Judge Reeves applied the lowest level of scrutiny, but found that even "under this generous standard, HB 1523 fails." He agreed  with the State's contention that HB 1523 furthers its “legitimate governmental interest in protecting religious beliefs and expression and preventing citizens from being forced to act against those beliefs by their government" is a "legitimate governmental interest."  But concluded that the interest is "not one with any rational relationship to HB 1523."  Indeed, the court declared that "deprivation of equal protection of the laws is HB 1523’s very essence."

On the Establishment Clause claim, Judge Reeves rehearsed the history of the Clause before focusing on two conclusions: HB 1523 "establishes an official preference for certain religious beliefs over others" and "its broad religious exemption comes at the expense of other citizens."For this latter point, Judge Reeves interestingly relied on and distinguished the recent controversial Burwell v. Hobby Lobby construing RFRA to confer a religious conscience accommodation to closely-held corporations:

The difference is that the Hobby Lobby Court found that the religious accommodation in question would have “precisely zero” effect on women seeking contraceptive coverage, and emphasized that corporations do not “have free rein to take steps that impose disadvantages on others.” The critical lesson is that religious accommodations must be considered in the context of their impact on others.

Unlike Hobby Lobby, HB 1523 disadvantages recusing employees’ coworkers and results in LGBT citizens being personally and immediately confronted with a denial of service.

[citations omitted].

 Judge Reeves opinion is careful and well-reasoned, but is nevertheless sure to be appealed by Mississippi officials unless they alter their litigation posture.

 

July 1, 2016 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Establishment Clause, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0)

Monday, June 27, 2016

United States Supreme Court Reaffirms Abortion Access in Whole Woman's Health

The United States Supreme Court's opinion in Whole Woman's Health v. Hellerstdet (previously Cole), declares unconstitutional both the admitting privileges and surgical center requirements of the controversial Texas HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis).  Justice Breyer, writing for the five Justice majority found that the regulations place a substantial obstacle and constitute an undue burden on the abortion right.

In the first case to address abortion since 2008, the Court clearly reaffirmed the substantial obstacle/undue burden test and found that the Texas' statutory scheme was too restrictive. The divisions amongst the Justices was clear in oral arguments and previous proceedings (a divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part).

The bulk of the 107 page opinions is Justice Alito's dissent, joined by Chief Justice Roberts and Justice Thomas.  (Note that even if Justice Scalia was still on the bench, the result would have been the same).  Justice Thomas also wrote separately.

Justice Breyer's opinion for the Court rebuked the Fifth Circuit for incorrect doctrine.  

The Court of Appeals’ articulation of the relevant standard is incorrect. The first part of the Court of Appeals’ test may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden. The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer. And the second part of the test is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue. The Court of Appeals’ approach simply does not match the standard that this Court laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is “undue.”

The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law.

[citations omitted].

With the correct standard (re)articulated, the Court then carefully considered the "record evidence" in this extensive litigation and agreed with the district judge that the Texas regulations placed substantial obstacles in the path of women seeking abortions, thus meeting the undue burden test.  The Court also found that the Texas restrictions did little to serve the state's articulated interests in protecting women's health and may actually have undermined the state's interests.

On the admitting privileges requirement, the Court rehearsed the expert evidence at trial and also pointed to amicus briefs, both to explain the context of admitting privileges and the effect of the requirement (including clinic closures). As to the relation to the state's articulated interest in women's health, the Court added:

when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.

The Court also specifically refuted the dissenting opinion's reliance on a well-known Pennsylvania scandal involving Gosnell:

Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years.  Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually.

 Justice Breyer's opinion for the Court engaged in a similar analysis as to the surgical center requirement.  Again, the Court stated that the mandate does not serve the stated interests in women's health" "many surgical-center requirements are inappropriate as applied to surgical abortions."  And again, the Court found that the record evidence as well as "common sense" meant that the (unnecessary) requirements would result in clinic closures which would result in a substantial obstacle to women's reproductive access.

While the Court's opinion is often very specific, Ginsburg's separate but very brief concurrence briefly strikes a broader note:

When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.

But whether one takes the specific or broader view, Whole Women's Health is a clear message to lower courts that their judicial function is to apply the current rule in a rigorous manner to preserve abortion access.

June 27, 2016 in Abortion, Due Process (Substantive), Fundamental Rights, Gender, Opinion Analysis | Permalink | Comments (0)

Saturday, May 7, 2016

Alabama Chief Justice Roy Moore Charged with Judicial Misconduct Based on Same-Sex Marriage Rulings

The continuing saga of the controversial Chief Justice of the Alabama Supreme Court, Justice Roy S. Moore, has taken another turn with a complaint against him filed by the Judicial Inquiry Commission of the State of Alabama, in the special Court of the Judiciary. [While the entire complaint is almost 300 pages, more than 250 pages are devoted to the 17 appendixes of supporting documents including opinions and letters].

As the complaint notes, this is not the first time that Justice Roy Moore has been before the Court of the Judiciary: the court removed him from office in 2003 for violation of the Alabama Canons of Judicial Ethics for failure to obey an injunction from a federal district court.  (He was re-elected in 2013.) While that earlier controversy revolved around the placement of the Ten Commandments in the courthouse, the present one concerns Justice Moore's actions on same-sex marriage.  As the complaint summarizes it, Chief Justice Moore's pertinent conduct "involves the interplay of four cases":

 The complaint gives a good chronology of the various events which have been contentious.  As we previously noted, the Southern Poverty Law Center filed a judicial ethics complaint after Chief Justice Moore penned a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order on same-sex marriage.

One of the more interesting aspects of the ethics charges is this:

On January 6, 2016—despite the United States Supreme Court's ruling in Obergefell, despite the United States District Court's injunction against all Alabama probate judges that specifically enjoined them from obeying any contrary order of the Alabama Supreme Court, and despite the Eleventh Circuit's October 20, 2015 order recognizing the abrogation of API by Obergefell—Chief Justice Moore, under the guise of his administrative authority as Chief Justice, unilaterally issued an Administrative Order to all probate judges that they continue to have a ministerial duty under API to enforce the Alabama marriage laws against same-sex couples.   His Administrative Order states in part:

IT IS ORDERED AND DIRECTED THAT: Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.

[paragraph 38].  In paragraph 3, the complaint stated "Significant to the context of this matter is that the vast majority of probate judges in this state are not licensed to practice law."  However, the probate judges would be bound by the Canons of Judicial Ethics; the complaint alleges that Moore "flagrantly disregarded and abused his authority as chief administrative officer of Alabama's judicial branch by "ordering or appearing to order" the probate judges not to obey the federal district court's injunction and thus ordering the probate judges to commit violations of the Canons of Judicial Ethics "knowingly subjecting them to potential prosecution and removal from office."

Thus, it is not only Moore's own refusal to abide by federal interpretations of the United States Constitution, but his ordering of subordinates to do so that are included in the six specific charges against him, all of which involve alleged violations of Canons 1, 2, and 3 of the Alabama Canons of Judicial Ethics, which, broadly stated are:

  • Canon 1.     A judge should uphold the integrity and independence of the judiciary.
  • Canon 2.     A judge should avoid impropriety and the appearance of impropriety in all his activities.
  • Canon 3.     A judge should perform the duties of his office impartially and diligently.

Chief Justice Moore has reportedly been suspended, pending the decision of the Alabama Court of the Judiciary, which is composed of judges, lawyers, and lay persons, and has the power to remove the Justice.  Interestingly, appeal from the Alabama Court of the Judiciary is to Supreme Court of Alabama.

 

 

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May 7, 2016 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Interpretation, Recent Cases, Sexual Orientation, State Constitutional Law, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)

Friday, April 22, 2016

Divided Second Circuit Upholds New York's "Maintain an Office" Requirement for Nonresident Attorneys

In the divided panel opinion in Schoenefeld v. Schneiderman,  a Second Circuit panel majority upheld the constitutionality of a requirement that attorneys who practice law in New York but do not reside within the state be required to maintain an office in New York.

The statute, N.Y. Judiciary Law §470, provides:

A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state.

Schoenefeld, admitted to practice in New York but who lived in New Jersey and maintained her main office in New Jersey, wished to practice law in New York without having the expense of a separate office in New York.  She challenged §470 on several constitutional grounds.  The district judge found that the statute violated the Privileges and Immunities Clause, Art. IV, §2, cl.1.   The lack of clarity in the statute caused the Second Circuit on appeal to certify the question of the "minimum requirements" to satisfy §470 to New York's highest court.  The New York Court of Appeals answered the certified question: §470 "requires nonresident attorneys to maintain a physical office in New York."

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Syndicate and St. Paul Buildings, Highest Office Buildings in the World, New York City, 1920, via

Writing for the Second Circuit panel majority, Judge Reena Raggi, who was joined by Judge Susan Carney, concluded that §470 had no discriminatory or protectionist purpose.  Instead, §470 - - - with "its origins in an 1862 predecessor law" - - - was actually enacted to reverse a court ruling that had barred a nonresident attorney from practicing law at all given the difficulties of service of process.  Despite changes and recodifications, the majority concluded that there was no showing that the current §470 was "being maintained for a protectionist purpose."  Again, the majority found that §470 was enacted for "the nonprotectionist purpose of affording such attorneys a means to establish a physical presence in the state akin to that of resident attorneys, thereby eliminating a court‐identified service‐of‐process concern."

The majority relied in large part on the Supreme Court's unanimous 2013 decision in McBurney v. Young holding that a state can restrict its own freedom of information law, FOIA, to its own citizens without violating the Privileges and Immunities Clause. 

In his vigorous dissenting opinion, Judge Peter Hall argued that the real import of §470 is that resident attorneys need not maintain an office while nonresident attorneys must maintain an office, thus discriminating.  The next step in the analysis, Judge Hall contended, should be to consider the state's justification for such discrimination.  Judge Hall distinguished McBurney based on the "simple reason that the Virginia FOIA is not an economic regulation, nor does it directly regulate the right to pursue a common calling."  Hall's dissent criticized the majority for imposing a requirement of discriminatory intent as part of a prima facie case that would be appropriate under the Equal Protection Clause but is not under the Privileges and Immunities Clause. Moreover, Judge Hall concluded that New York's "proffered justifications for the in‐state office requirement— effectuating service of legal papers, facilitating regulatory oversight of nonresident attorneys’ fiduciary obligations, and making attorneys more accessible to New York’s courts—are plainly not sufficient."

Thus, New York can constitutionally compel attorneys who do not reside in New York to maintain a physical office in New York.

April 22, 2016 in Courts and Judging, Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Tuesday, April 12, 2016

Tenth Circuit: Utah's Ban on Polygamous Cohabitation and Marriage Stands

The Tenth Circuit has ruled that the Browns - - - of Sister Wives reality television fame - - - cannot challenge Utah's ban on polygamous cohabitation and marriage under Article III judicial power constraints.  In its opinion in Brown v. Buhman, the unanimous three judge panel found that the matter was moot. 

Recall that federal district judge Clark Waddoups finalized his conclusion from his previous opinion that Utah's anti-bigamy statute is partially unconstitutional. The statute, Utah Code Ann. § 76-7-101, provides:

  •             (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
  •             (2) Bigamy is a felony of the third degree.
  •             (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.

 [emphasis added].  Judge Waddoups concluded that the "the cohabitation prong does not survive rational basis review under the substantive due process analysis."  This analysis implicitly imported a type of equal protection analysis, with the judge concluding:

Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.

On appeal, the Tenth Circuit panel held that the district judge should not have addressed the constitutional claims because the case was moot.  Even assuming the Browns had standing when the complaint was filed, any credible threat of prosecution was made moot by a Utah County Attorney's Office (UCAO) 2012 policy which stated that "the UCAO will prosecute only those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse."  The opinion stated that nothing "in the record" suggested that Browns fit into this category and additionally, there was an affirmation from the defendant that "the UCAO had 'determined that no other prosecutable crimes related to the bigamy allegation have been or are being committed by the Browns in Utah County as of the date of this declaration. ' ”

The opinion found that the "voluntary cessation" exception to mootness was not applicable because that was intended to prevent gamesmanship: a government actor could simply reenact the challenged policy after the litigation is dismissed. 

Yet the problem, of course, is that the statute remains "on the books" and the policy is simply not to enforce it except in limited cases.  The court rejected all of the Browns' arguments that the UCAO statement did not moot the challenge to the constitutionality of the statute including a precedential one; the possibility that a new Utah County Attorney could enforce the statute; the failure of defendant, the present Utah County Attorney, to renounce the statute's constitutionality; and the tactical motives of the defendant, the present Utah County Attorney, in adopting the policy.  The court stated:

The first point misreads the case law, the second is speculative, the third is minimally relevant, and the fourth may actually assure compliance with the UCAO Policy because any steps to reconsider would almost certainly provoke a new lawsuit against him. Such steps also would damage Mr. Buhman’s credibility as a public official and might even expose him to prosecution for perjury and contempt of federal court for violating his declaration. Assessing the veracity of the UCAO Policy must account for all relevant factors, which together show no credible threat of prosecution of the Browns.

Thus, like other criminal statutes that are said to have fallen into "desuetude," the statute seems immune from constitutional challenge.

In a very brief section, the court does note that the plaintiffs no longer live in Utah, but have moved to Nevada, another rationale supporting mootness.  The Nevada move is discussed in the video below featuring some of the children involved.

 

 

 

 

April 12, 2016 in Courts and Judging, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Mootness, Opinion Analysis, Religion, Sexuality, Standing, Television | Permalink | Comments (1)

Friday, April 8, 2016

First Circuit: Same-Sex Marriage Ruling in Obergefell Applies to Puerto Rico

In a brief per curiam opinion, a panel of the First Circuit essentially reversed the ruling of Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez that denied the joint motion for summary judgment in Conde-Vidal v. Garcia-Padilla regarding a challenge to Puerto Rico's same-sex marriage ban.

The panel stated:

The district court's ruling errs in so many respects that it is hard to know where to begin. The constitutional rights at issue here are the rights to due process and equal protection, as protected by both the Fourteenth and Fifth Amendments to the United States Constitution. Obergefell v. Hodges; United States v. Windsor. Those rights have already been incorporated as to Puerto Rico. Examining Bd. Of Eng'rs, Architects & Surveyors v. Flores de Otero (1976). And even if they had not, then the district court would have been able to decide whether they should be. See Flores de Otero.

In any event, for present purposes we need not gild the lily.  Our prior mandate was clear . . . 

[citations and footnote omitted].

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After quoting its previous opinion, the panel then addressed the procedural posture of the case, noting that the district court "compounded its error (and signaled a lack of confidence in its actions), by failing to enter a final judgment to enable an appeal in ordinary course."  Both parties therefore sought a writ of mandamus, which the court granted and additionally "remitted" the case to the district court "to be assigned randomly by the clerk to a different judge to enter judgment in favor of the Petitioners promptly, and to conduct any further proceedings necessary in this action."

The First Circuit did not explicitly discuss the district judge's conclusions regarding Puerto Rico's status and his argument that under The Insular Cases (1901), territorial incorporation of specific rights is questionable.  But  the First Circuit did cite contrary authority and made clear its disagreement.  The intensity of the disagreement is also made evident by the First Circuit's somewhat unusual instruction that Senior United States District Judge for the District of Puerto Rico Juan Perez-Gimenez be removed from the case.

 

April 8, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Interpretation, Opinion Analysis, Sexual Orientation, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0)