Constitutional Law Prof Blog

Force-Feeding at Guantanamo

The ACLU and 19 other organizations sent a letter this week to Secretary of Defense Chuck Hagel opposing the military's force-feeding hunger-striking detainees at Guantanamo Bay.  According to the ACLU, 29 detainees are currently being force-fed.  We previously posted on a ruling by New York's high court upholding the practice of force-feeing in New York prisons.

The military's standard operating procedures (SOP) on fasting and force-feeding changed just recently (published on Al Jazeera), loosening protections against force-feeding.  (The earlier SOP is here.)  Most notably, the recent changes to the SOP charge the military commander of the base, not a medical doctor, with determining who is a hunger striker.

Here's the ACLU's legal case against force-feeding, from this week's coalition letter to Secretary Hagel:

Force-feeding as used in Guantanamo violates Common Article 3 of the four Geneva Conventions of 1949, which bar cruel, humiliating and degrading treatment.  It also could violate the Detainee Treatment Act of 2005, which prohibits the "cruel, inhuman, or degrading treatment" of prisoners "regardless of nationality or physical location."  Indeed, a 2006 joint report submitted by five independent human rights experts of the United Nations Human Rights Council (formerly the U.N. Commission on Human Rights) found that the method of force-feeding then used in Guantanamo, and which appears to remain in effect today, amounted to torture as defined in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States ratified in 1994.  The report asserted that doctors and other health professionals authorizing and participating in force-feeding prisoners were violating the right to health and other human rights, including those guaranteed by the International Covenant on Civil and Political Rights, which the United States ratified in 1992.  Those concerns were reiterated this month by the Office of the UN High Commissioner for Human Rights, the Inter-American Commission on Human Rights, the United Nations Working Group on Arbitrary Detention, and three UN Special Rapporteurs.

While the letter focuses on cruel, inhuman, or degrading treatment, there may be other problems with force-feeding, too.  For example, force-feeding may infringe on hunger-striking detainees' free speech.  But First Amendment claims by hunger-strikers in regular detention in the U.S. have not been successful; Guantanamo Bay detainees would almost certainly face even steeper First Amendment challenges in the courts.  There's also the right to refuse medical treatment.  As Michael Dorf (DorfonLaw.org) argues at jurist.org, "five Justices in [Cruzan v. Dir. Missouri Dep''t of Health] did say that they thought that competent adults have the right to refuse forced feeding, even if death will result."  But that runs up against Washington v. Harper, holding that prison officials could override a prisoner's objection to forcibly being administered medication, assuming it's in the prisoner's medical interest.

Anyway, as Dorf points out, some Guantanamo detainees might have a hard time even bringing a case.  Judge Kessler (D.D.C) dismissed a detainee force-feeding case in 2009, based on the jurisdiction-stripping provision in the Military Commissions Act of 2006.  That provision says,

Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The difference here is that some of the hunger-strikers now have been cleared for release--the U.S. just can't find a place to send them.  Those detainees are not "determined by the United States to have been properly detained as an enemy combatant or [are] awaiting such determination," and are not barred by 2241(e)(2) from bringing suit.

SDS

Kansas Outlaws Federal Gun Laws

Kansas thumbed its nose at the federal government and its current and future gun laws recently in SB 102, the Second Amendment Protection Act, which declares federal gun laws unenforceable in the state.  

In particular, SB 102 says that the state legislature "declared" that firearms and accessories "manufactured commercially or privately and owned in Kansas and that remain within the borders of Kansas . . . have not traveled in interstate commerce" and therefore are not subject to federal regulation, including any federal registration requirement, under the Commerce Clause.  In short, the law seeks to insulate firearms and accessories that are made and kept only within the state from federal regulation under the Commerce Clause.  This reading of the Clause would deny the federal government authority to regulate activities that have a substantial effect on interstate commerce--a well settled congressional authority.  (The law also says that component parts imported from other states don't transform an otherwise Kansas-made firearm into an item in interstate commerce.)  To that extent, the law seems well tailored to test this long-standing aspect of congressional Commerce Clause authority--the power to regulate intrastate activities that have a substantial effect on interstate commerce.  If so, that's unlikely to go anywhere.  (Even in last summer's ACA/individual-mandate case, the Court gave no indication that it would wholly reconsider Congress's power to regulate activities that have a substantial effect on interstate commerce.)

More, SB 102 outlaws enforcement of federal law--even by federal law enforcement.  Enforcement of federal law is a felony in Kansas, but the legislature gave federal law enforcement officials this gift: Kansas won't arrest or detain them prior to, or during the pendancy of, any trial for a violation.  In other words, the charge, trial, and conviction are all just part of the political theater surrounding this obviously invalid law.

(In addition to the substantive portions of the law, SB 102 also includes the usual statements for this kind of law--statements about the Tenth Amendment (in support of a robust idea of states' rights) and the Second Amendment (as an absolute bar to any gun regulation).  It also has a section on the Ninth Amendment.)

Attorney General Eric Holder shot back, reminding the state of the Supremacy Clause, and concluding that "the United States will take all appropriate action, including litigation if necessary, to prevent the State of Kansas from interfering with the activities of federal officials enforcing federal law."

Governor Brownback responded, arguing that the measure enjoyed wide bi-partisan support in the state.  He said that this meant that "[t]he people of Kansas have clearly expressed their sovereign will.  It is my hope that upon further review, you will see their right to do so."

SDS 

States Can Restrict FOIA Laws to Own Citizens, Court Says

A unanimous Supreme Court ruled today in McBurney v. Young that a state can restrict its own freedom of information law to its own citizens without violating the Privileges and Immunities Clause or the dormant Commerce Clause.  We covered oral arguments here.

The ruling puts an exclamation point behind the idea that there's no fundamental right to public records.  If there were any doubt going into the case, this ruling settled the matter: Our Constitution doesn't require freedom of information.  If you want it, take it up with your legislature.

The case arose out of two out-of-state claimants' efforts to get Virginia state records through the state FOIA.  One of those claimants, McBurney, sought records related to the state's 9-month delay in enforcing a child support order that he had against his ex-spouse, a Virginia resident.  The other, Hurlbert, sought state real estate tax records on half of his clients.  The state didn't provide the requested records pursuant to its FOIA, however, because its FOIA extends only to state citizens.  (It did provide most of the records through other means.)  Both McBurney and Hurlbert sued, arguing that the FOIA violated the Article 4 Privileges and Immunities Clause and the dormant Commerce Clause.  

The Court disagreed.  In an opinion by Justice Alito, the Court said that the FOIA doesn't interfere with a fundamental right in violation of the Privileges and Immunities Clause.  It said that the FOIA doesn't violate the opportunity to pursue a common calling, because the law wasn't designed to provide a competitive advatage for Virginia citizens.  It doesn't violate the right to own or transfer property in Virginia, because Virginia makes the necessary records available through the clerks of its circuit courts (even if not through its FOIA).  The FOIA doesn't violate the right to gain equal access to Virginia courts, because its citizens-only application leaves open "reasoanble and adequate" access to the courts (because state procedure allows discovery and subpoenas, which would provide noncitizens with any relevant and nonprivileged information, and state law allows equal access to judicial records).  And it doesn't violate a claimed right to gain access to public information on equal terms, because, well, there is no such right.

The Court also rejected Hurlbert's dormant Commerce Clause claim, ruling that Virginia's FOIA neither regulates nor burdens interstate commerce.  "[R]ather, it merely provides a service to local citizens that would not otherwise be available at all."  Op. at 13.

Justice Thomas joined the opinion but wrote separately to remind us of his view that "[t]he negative Commerce Clause has no basis in the text of the Constitution."  

SDS

Constitutional Issues in the Tsarnaev Case

The Obama administration announced today that it would not hold alleged Boston Marathon bomber Dzhokhar Tsarnaev as an enemy combatant, as some (perhaps most prominently Senator Lindsay Graham) have advocated.  Adam Serwer argues at Mother Jones that this was an easy case:

Under current law, the fact that Tsarnaev shares an ethnicity and religion with other extremists is insufficient grounds to detain him militarily.  The 2012 National Defense Authorization Act, which Graham vocally supported, defines as eligible for military detention "a person who was part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners."  There's no evidence yet that the suspects in the Boston bombing acted with the support of or at the behest of Al-Qaeda, the Taliban, or associated forces.  Unless that evidence emerges, it wouldn't be legal to hold Tsarnaev as an enemy combatant, even if he and his brother were motivated by extremist religious beliefs.

Serwer quotes Benjamin Wittes, saying "It's actually not a close question."  Wittes set out his case against detention as an enemy combatant on Lawfare.  CRS has a terrific backgrounder, titled Detention of U.S. Persons as Enemy Belligerents, here.

There's still some buzz about the Miranda question.  New York v. Quarles (1984) created the "public safety" exception; the case is here.  The Obama FBI issued this memo, obtained first by the NYT, on October 21, 2010, interpreting the exception and possibly expanding its scope for terrorist suspects.  (Wittes posted these reflections on the memo on Lawfare.)  Glenn Greenwald at the Guardian writes here; Emily Bazelon at Slate writes here; and Sandy Levinson and Jason Mazzone go back and forth at Balkinization here.  CRS has a good introduction to some of the issues, Terrorism, Miranda, and Related Matters, here.

SDS

Oral Argument Preview: Adoptive Couple v. Baby Girl and the Constitutional Issues

The oral arguments in Adoptive Couple v. Baby Girl, on certiorari to the South Carolina Supreme Court will be held on April 16.  The case, also known as “Baby Veronica,” is an emotional struggle over custody of a small child.

On one view, the Court’s task is a relatively simple one of statutory interpretation, including the definition of “parent” in the Indian Child Welfare Act, ICWA.  The petitioners, the adoptive couple, articulate the questions presented as:

(1) Whether a non-custodial parent can invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.

(2) Whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

The questions presented by the respondent birth father, a registered member of the Cherokee Nation, and by the respondent Cherokee Nation, and by the United States as amicus curiae supporting the respondent, all likewise focus on ICWA, albeit with a different persuasive cadence.   These articulations stress the positive acts of the biological father.  For example, as the biological father phrases the parenting definition question:

Whether an Indian child’s biological father who has expressly acknowledged that he is the child’s father and has established that he is the father through DNA testing is the child’s “parent” within the meaning [of ICWA].

The Brief of the United States as amicus curiae, supporting the respondent father and tribe has a similar issue statement, asking whether the state courts properly applied ICWA

 to award custody of an Indian child to her biological father over an adoptive couple, where the father acknowledged and established his paternity and no remedial measures had been taken to avoid termination of his parental rights.

However, the case is not merely one of statutory interpretation, but raises important, if not always obvious, constitutional issues.

First, Congressional intervention in child welfare must rely on a particularly enumerated power of Congress, the usual one being the Spending Clause.  For Native Americans, however, Congressional power is often labeled “plenary,” although it is grounded most specifically in the Indian Commerce Clause, Art. I §3 cl. 8.   ICWA was intended to prevent the removal of Native children from their parents - - - as well as their tribes - - - a history that many of the amicus briefs discuss in depth. 

 

 

Second, and relatedly, this Congressional power over Native children raises federalism issues, especially given that child custody and adoption are generally within the state’s police powers.  In the case of Baby Veronica, the South Carolina Supreme Court affirmed the trial judge’s application of ICWA to deny the adoption and award custody to the Native father. Yet the very existence of ICWA arguably intrudes upon state police powers.

Third, and most stealthily, the case may present issues of due process and equal protection.  In the brief on behalf of Baby Veronica through her Guardian ad Litem authored by Paul Clement, the arguably “erroneous interpretation” of ICWA “raises serious constitutional issues.”  In this argument, the best interests of the child standard - - - the usual touchstone in child adoption and custody - - - aspires to a constitutional right of the child.  Moreover, the state court’s decision violated the baby’s equal protection and due process rights.

For example, the brief analogizes to the equal protection case of Palmore v. Sidoti:

In Palmore, this Court struck down the use of racial classifications to remove a child from an appropriate custody placement. This case is no different. Baby Girl’s Indian blood quantum was the sole reason the lower court ordered her removed from the loving, stable home she had lived in since birth and placed with a biological father whose failure to timely care for her extinguished any parental rights he might otherwise have had under state law or the Constitution.

Less successfully, the brief attempts to articulate a liberty interest of the child:

And “to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation.” Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J., dissenting).

Yet ultimately, the brief argues that there is an (unconstitutional) racial classification if ICWA is applied too broadly.  Clement argues that ICWA should be interpreted to limit "its application to adoption and custody proceedings involving children who are either domiciled on a reservation or have some other tribal connection beyond biology."  

These limitations are crucial to preserving the Act’s constitutionality, ensuring that the Act’s differential treatment of Indians operates only to promote tribal sovereignty and the unique interests of Indians as tribal citizens, and not as invidious racial discrimination that arbitrarily trumps Baby Girl’s liberty interests.  [ICWA's] definition of parent, properly interpreted, avoids these difficulties by declining to give an unwed Indian father rights based on biology alone that no non-Indian unwed father enjoys. 

Moreover, ICWA's constitutional interpretation rests upon limiting its "application to children in the pre-existing custody of an Indian parent or other circumstances in which there is a distinct connection to tribal interests."

Clement - -  who so recently represented BLAG supporting the constitutionality of DOMA in United States v. Windsor - - - here has quite a different view of equality and federal power.  

While it is unlikely that these constitutional arguments assume center stage, they may infuse the statutory interpretation of ICWA so squarely before the Court.

RR
[image circa 1890 via]

School May Ban Rubber Fetus Dolls

A three-judge panel of the Tenth Circuit ruled yesterday in Taylor v. Roswell Independent School District that a school can ban students' distribution of rubber fetus dolls without violating free speech, free exercise, or equal protection.

The case arose when members of a student group, Relentless, distributed rubber fetus dolls to fellow students at two schools, without required administration permission.  The dolls were said to have the weight and size of a 12-week-old fetus.  Relentless members apparently distributed them to educate fellow students and to protest abortion.  But that message only backfired:

Both schools experienced doll-related disruptions that day.  Many students pulled the dolls apart, tearing the heads off and using them as rubber balls or sticking them on pencil tops.  Others threw dolls and doll parts at the "popcorn" ceilings so they became stuck.  Dolls were used to plug toilets.

Op. at 7-8.  And on and on.

The administration stepped in and stopped the distribution, even though it allowed students to distribute other non-school-related items (like Valentine's Day items), and even though it previously permitted Relentless to distribute other things like McDonald's sandwiches to teachers.  (Maybe not surprisingly, those things didn't cause the same kinds of disruptions.)

So Relentless members sued, arguing that the administration violated free speech, the Free Exercise Clause, and equal protection.

The Tenth Circuit rejected each of these claims.  As to free speech, it said that the case did not involve content-based discrimination, and that nobody contested the administration's ability to confiscate dolls that were used to harm school property or for lewd or obscene expressions of their own.  Instead, the case involved private, non-school-related speech, and "[a]pplying Tinker, we hold that the District did not violate Plaintiffs' free speech rights because it reasonably forecasted that distribution of the rubber dolls would lead to a substantial disruption."  Op. at 16.  The court also held that the pre-approval policy looked like a licensing scheme, but with plenty of procedural safeguards (inluding two appeals) and substantive constraints on official discretion--and in the special environment of a school, where the First Amendment doesn't give students the same free speech rights that they may have, say, in the public square.  Finally, the court held that the pre-approval policy wasn't unconstitutionally vague, because a student of ordinary intelligence would know when he or she needs to get a license, and how.  The court said that the plaintiffs failed to show any arbitrary enforcement.

As to the Free Exercise Clause, the court held that there was no evidence of discriminatory purpose on the part of the administrators--that the ban on fetal doll distribution was neutral--that therefore rational basis review applied, and that the administrators had a rational reason for banning the doll distribution--that is, stopping the "doll-related disruptions."  As to equal protection, the court said that the plaintiffs couldn't show that they were treated differently than anyone else seeking to distribute items at school and so couldn't show a violation of equal protection.

SDS

Daily Read: Linda Greenhouse on Federalism and Same-Sex Marriage

In her column in the NYT last week, Linda Greenhouse wonders whether the federalism argument in the challenge to DOMA in United States v. Windsor is a "Trojan horse." 

Greenhouse has this reminder about federalism and family law:

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)

Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.

Moreover, she extends the argument outside marriage and family law:

Substitute “marriage” for “criminal procedure” and you time-travel into last week’s argument. But you will listen in vain for the voice of Justice William O. Douglas, who brushed away concerns about what he dismissively called “this federalism” to ask: “Has any member of this court come out and said in so many terms it’s the constitutional right of a state to provide a system whereby people get unfair trials?”

As usual, Linda Greenhouse is worth a read, for ConLaw Profs and ConLaw students.

RR
[image via]

No Right to Possess Gun for Drug Trafficking

A three-judge panel of the Second Circuit ruled this week in United States v. Bryant that the Second Amendment does not protect a right to possess a gun for drug trafficking.  With the ruling, the Second Circuit joins the Seventh and Ninth Circuits in rejecting Second Amendment challenges to 18 U.S.C. Sec. 924(c), providing criminal sanctions for using or carrying a firearm during and in relation to a drug trafficking crime.

The Second Circuit seized on language in D.C. v. Heller that says that the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," and that "the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home."  (Emphasis added, both times.)  The court ruled that possession of a gun for a drug trafficking crime is (obviously) not possession for a lawful purpose, and therefore federal law can punish such possession without running afoul of the Second Amendment.  The court explained:

Here, Bryant may have purchased and possessed the Remington shotgun for the "core lawful purpose" of self-defense but his right to continue in that possession is not absolute.  The jury determined there was sufficient evidence to convict Bryant of drug trafficking and also to convict him of possessing a firearm in connection with that drug trafficking. . . .  Thus, once Bryant engaged in "an illegal home business," he was no longer a law-abiding citizen using the firearm for a lawful purpose, and his conviction for possession of a firearm under these circumstances does not burden his Second Amendment right to bear arms.

(Citations omitted.)

SDS

N.C. Bill Takes on First Amendment, Supremacy, Judicial Review--All in One Fell Swoop

North Carolina lawmakers introduced a bill earlier this week that declares the state exempt from the First Amendment's Establishment Clause.  The bill is apparently a reaction to an ACLU suit filed last month against the Rowan County Board of Commissioners for opening its meetings with explicitly Christian prayers.

But the bill doesn't just take aim at the Establishment Clause.  It also challenges federal supremacy and takes on federal judicial review.  Here are some of the whereases:

Whereas, [the Establishment Clause] does not apply to states, municipalities, or schools; and . . .

Whereas, the Tenth Amendment of the Constitution of the United States prohibits the federal government and prohibits the federal courts from expanding the powers of the federal government beyond those powers which are explicitly enumerated; and

Whereas, the Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people; and

Whereas, each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion . . . .

Here's the punch-line:

Section 1. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.

Section 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivision of the State from making laws respecting an establishment of religion.

SDS

Judge Rules Ban on Felon Gun Possession Unconstitutional Under New Amendment

A state judge ruled that a Lousiana statute that criminalizes gun possession by felons violated the state's new and enanced right to bear arms, according to the Times-Picayune.  The judge ruled the criminal ban unconstitutional and dismissed the felon possession charge against the defendant in the case.  The ruling will go directly to the state supreme court.

Louisiana voters last year overwhelmingly passed a proposed state constitutional amendment, Proposed Amendment 2, that made "the right to keep and bear arms . . . fundamental" and explicitly provided for strict scrutiny review of any restriction of that right.  The amendment also did away with previous language that permitted the state to prohibit the carrying of a concealed weapon.  Here's the Lousiana SOS backgrounder; here are the ballot measures.

Under the new amendment, courts faced with a restriction on "the right to keep and bear arms" must apply strict scrutiny review.  According to Judge Darryl Derbigny, Louisiana's statute criminalizing felon possession of guns just didn't cut it.

SDS

Daily Read: US v. Windsor, the DOMA Case, Amicus Brief of National Association of Evangelicals

Third in a Series: Guest Post by Versely Rosales, City University of New York (CUNY) School of Law, class of 2014

The brief submitted by National Association of Evangelicals; The Ethics  & Religious Liberty Commission of the Southern Baptist Convention; The Church of Jesus Christ of Latter-Day Saints; The Lutheran Church-Missouri Synod; The Romanian-American Evangelical Alliance of North America; and Truth in Action Ministries supports the position of BLAG arguing for the constitutionality of DOMA. 

The brief argues that rational basis review is the proper standard for evaluating legislation, like DOMA, that implicates questions of values, culture, and policy. The brief also argues that “moral and religious views voiced in support of DOMA do not detract from its validity.”

The rational basis argument:

This amicus brief first argues that rational basis governs because what is at issue in DOMA “is not a discrimination against a discrete and insular minority.”  Instead, the issue is a “profound culture debate over the nature and meaning of marriage.”  Further, because “homosexuals” have political power, they do not need extraordinary judicial protection from majoritarian interests. Thus, they can rely on the democratic political processes to engage in a debate over values, morals, judgments, and culture. Therefore, rational basis review is the only standard that allows for spirited democratic debate over the different visions of marriage that should prevail in the federal government. By applying anything other than rational basis, the Court would deprive the public of this debate. In particular, it would deny faith communities, who have a “long experience in these matters” and “unique perspectives,” to be heard by democratic decision makers.

Thus, the brief contends that the Second Circuit’s conclusion that Section 3 of DOMA is unconstitutional stands on a “rickety foundation.”  The Second Circuit is faulted for “creat[ing] the first new protected class in 35 years,” and being contrary to every federal court of appeals that has addressed the question.  Further, this amicus brief notes several other reasons why heightened scrutiny is “plainly improper in this case.” First, heightened-scrutiny jurisprudence contains a strong presumption against creating new suspect classes as courts should be very reluctant to closely scrutinize legislative choices. Secondly, the Constitution presumes that unjust discrimination will be remedied through the ordinary democratic process. Thirdly, the Supreme Court’s refusal to recognize any new suspect classes confirms the necessity of a very cautious approach into sensitive areas.  

The amicus brief of these religious organizations criticizes the Second Circuit opinion for failing to recognize that rational basis review is the proper standard of review for preserving the primacy of the democratic process in cases turning on fundamental issues of public policy, culture, and morality. DOMA is argued to be within this category because it has become monumental cultural conflict between two major visions of marriage: traditional marriage which is centered on procreating and raising children; and the more recent, genderless, adult-orientated notion where procreation and childrearing are not central to marriage’s meaning. The traditional marriage concept has deep roots and provides a mechanism for coping with the reality that sex between men and women generally results in pregnancy and childbirth. And, whether proven or not, it is reasonable to accept that children born from opposite-sex married relationships will benefit by being raised by two parents within long-term relationships. In addition, lawmakers cannot and should not rely on social science scholars on the effects of sexual minorities parenting children because, in part, such opinions are inherently tentative and often laden with value-based assumptions.  Thus, lawmakers should be allowed to use their judgments and own experience, which have led them to believe that traditional marriage and family structure deserve distinctive legal protections.

The amicus brief also points out while the Court has never adopted “the genderless, adult-centered definition of marriage,” it has “long endorsed the strong legislative preference for man-woman marriage as the foundation of our society.” Given this historical preference, the Court should construe DOMA as a rational preference for the tried and familiar over the untried and novel.

The moral and religious views argument:

The second main argument of this amicus brief contends “moral and religious views voiced in support of DOMA do not detract from its validity.”  Congress identified “defending traditional notions of morality” as one of the four “governmental interests” for the enactment of DOMA. The brief argues that Congress recognized that the issue of marriage has moral or religious aspects for many Americans and that cannot be divorced from the practicalities. Lawmakers have the right to protect this valued moral norm, and when they do so, it should not be labeled as invalid just because it happens to coincide with the tenets of some - - -or all - - - religions. To declare DOMA void merely because it adheres to traditional moral and religious belief would fly in the face of this Court’s ruling that the Constitution does not allow the government to treat religion and those who practice or teach it as being subversive to American ideals and therefore subject them to unique disabilities. “By scrutinizing a law reflecting, in part, religious values more severely than others, courts would effectively target such beliefs or religious support for unusual burdens or penalties.”

Interestingly, the brief ultimately argues that to subject DOMA to heightened scrutiny simply because of its “affiliation with traditional morality would raise First Amendment concerns.”

Contribution of the Brief:

This amicus brief supports the position of BLAG that DOMA is unconstitutional.  But although BLAG agrees that traditional marriage coincides with religious sections of the citizenry, it does not emphasize the moral aspect of DOMA in its brief.

The Government brief does not agree with the assertion that what is at issue is a cultural debate. The Government clearly argues in its brief that DOMA is based on discrimination and it affects the distribution of benefits to a sub-section of society. The Government also disagrees with the Amicus brief’s most basic contention: Homosexuals are not a discrete and insular minority deserving of heightened scrutiny.

The argument that the First Amendment is relevant is unique; it is not shared by BLAG or the Government.

[posted and edited by RR]
[image via]

 

Judge Rules Nondisclosure Provision of National Security Letter Statute Unconstitutional

Judge Susan Illston (N.D. Cal.) ruled last week in In Re National Security Letter that the nondisclosure and judicial review provisions of the National Security Letter Statute violated free speech.  But she stayed the ruling pending Ninth Circuit review.

National Security Letters are those statutory inventions that require a wire or electronic communication service provider to turn over specified categories of subscriber information if the FBI certifies that the records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.  The statute also prohibits an NSL recipient from disclosing the NSL, so long as the FBI certifies that disclosure could threaten national security.  (This is the nondisclosure provision.)  Finally, it provides for judicial review NSLs and nondisclosure orders, but puts a thumb on the scale in favor of the government in review.  (This is the judicial review provision.)

Judge Illston ruled that the nondisclosure provision "clearly restrains speech of a particular content--significantly, speech about government conduct," even if it is not a "classic prior restraint" or a "typical" content-based restriction on speech.  As such, she ruled, the provision is subject to the Freedman v. Maryland safeguards--that a restraint prior to judicial review can be imposed only for a specific period, that expeditious judicial review of the decision must be available, and that the government must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court. 

But Judge Illston said that the nondisclosure provision didn't meet those safeguards, in particular, it didn't provide that the government had to initiate judicial review and bear the burden of proof.  Moreover, she ruled that it swept too broadly, prohibiting recipients from disclosing even the mere fact of their receipt of an NSL.

As to judicial review, Judge Illston wrote that "the statute impermissibly attempts to circumscribe a court's ability to review the necessity of nondisclosure orders," by limiting how a court might set aside an NSL. 

Judge Illston concluded that there was no way to read the nondisclosure provision to save it, and thtat it was not severable from the rest of the act.  But she stayed her ruling pending Ninth Circuit consideration of the case.

SDS

Daily Read: Symposium Issue on Perry from NYU Review of Law & Social Change

Debuting on line today is volume 37:1 of the NYU Review of Law & Social Change, a symposium issue dedicated to Perry v. Brown, now Hollingsworth v. Perry that is scheduled to be heard by the United States Supreme Court in 15 days.

According to the Introduction, the Symposium editors sought to present the issue as a "time capsule," filled with "leading and emerging voices in the LGBTQ movement" as well as other scholars, "reflecting on Perry before the Court has its final say, before anyone gets the benefit of 20/20 hindsight."  The comments were "first drafted before the Court had even granted certiorari" on the premise that Perry was already an important case.

The Symposium participants were asked to address three queries.  Here are the questions and the participants:

 



The Symposium will also be available as a print issue, but meanwhile having its full contents available before the arguments makes it more valuable as a daily - - - or weekly - - - read.

RR

Paul's Filibuster and the Administration's Domestic Drone Authority

Senator Rand Paul started a talking filibuster today on the Senate floor, holding up John Brennan's nomination to head the CIA.  His problem?  The administration's use of drones.  In particular, a reply he received earlier this week from AG Holder in response to his question whether the government could use drones to target and kill U.S. citizens within the United States.  Here's Holder's answer:

The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no President will ever have to confront.  It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.  For example, the President could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances of a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.

Were such an emergency to arise, I would examine the particular facts and circumstances before advising the President on the scope of his authority.

Adam Serwer at Mother Jones was out front in reporting on AG Holder's letter.  Senator Paul's official web-site is posting his hour-by-hour comments on the floor.

SDS

Sixth Circuit Says Holiday Display Doesn't Establish Religion or Violate Free Speech

The Sixth Circuit ruled earlier this week in Freedom from Religion Foundation, Inc. v. City of Warren that a city's holiday display didn't violate the Establishment Clause and that its refusal to include the petitioner's message in the display didn't violate free speech.

The City of Warren puts up a holiday display every year between Thanksgiving and New Years in the atrium of its civic center.  The display includes a range of secular and religious symbols, including a lighted tree, reindeer, snowmen, a "Winter Welcome" sign, and a nativity scene.  The Freedom from Religion Foundation wrote a series of letters to the Mayor asking him to remove the nativity scene, but the Mayor refused.  So the Foundation asked the Mayor to include its sign in the display; the sign read:

At this season of THE WINTER SOLSTICE may reason prevail.  There are no gods, no devils, no angels, No heaven or hell.  There is only our natural world, religion is but myth and superstition that hardens hearts and enslaves minds.

The Mayor declined.  He wrote back explaining, in his view, why the sign would "provoke controversy and hostility," why it violates this country's basic religious beliefs ("our country was founded upon basic religious beliefs"), and even why the Foundation's "non-religion is not a recognized religion" under the First Amendment.  The Foundation sued, arguing that the display violated the Establishment Clause and that the Mayor's rejection of its sign violated free speech.  The Sixth Circuit rejected the claims.

The Sixth Circuit ruled that the display didn't violate the Establishment Clause, becuase, under Lynch v. Donnelly (1984) and County of Allegheny v. ACLU (1989), it contained sufficiently diverse religious symbols and sufficient secular items so that it didn't unconstitutionally promote a religion or religion generally.  (The court recognized that the Mayor's letter took some liberties with constitutional law: "the Mayor, apparently untrained as a lawyer, may not have missed his calling."  Still, it read the letter to mean that the Mayor was principally concerned about the controversy and hostility that the sign might provoke, and not preferencing religion.) 

The court ruled that the Mayor's rejection of the sign didn't violate free speech, because, under Pleasant Grove v. Summum (2009), the display was government speech, and the government doesn't have to be viewpoint neutral in its own speech.  The court emphasized that the display was approved and controlled by the government, even if it included some privately-donated items.

SDS

Court Seems Poised to Overturn Voting Rights Act

The Supreme Court today heard oral arguments in Shelby County v. Holder, the case testing the constitutionality of the preclearance provision and related coverage formula of the Voting Rights Act.  If the questions at arguments are any indication of the Court's leaning--and it's always dicey to predict based on arguments, but here perhaps less so than in a more ordinary case--it looks like preclearance or the coverage formula or both will go down by a close vote.

Section 5 of the VRA, the preclearance provision, provides that "covered jurisdictions" (defined under Section 4(b)), have to get permission from the Justice Department or a federal court in the District of Columbia before making changes to their election laws.  This means that jurisdictions need to show that proposed changes to their election laws aren't motivated by race and won't result in disenfranchising voters or dilluting votes by race.  This extraordinary remedy is justified in part because the more usual way of enforcing voting rights--individual suits against offending jurisdictions--is not an effective way to address voting discrimination.  (Individual suits, by a voter or by the Department of Justice, are authorized by Section 2 of the VRA.  Section 2 is not at issue in this case.)

Shelby County, which sits within fully covered Alabama, brought the facial challenge against Section 5, the preclearance provision, and Section 4(b), the coverage formula, as reauthorized by Congress in 2006, arguing that Congress exceeded its authority under the Fourteenth and Fifteenth Amendments.  In particular, Shelby County claimed that Congress didn't have sufficient evidence in its 2006 reauthorization to require the covered jurisdictions to seek permission (or preclearance) from the Justice Department or the District Court in the District of Columbia before making any change to its election laws.  Shelby County also said that preclearance for the covered jurisdictions violated principles of federalism and equal sovereignty among the states.

The arguments were lively, to say the least.  The justices seemed to be arguing with each other more than questioning the attorneys, who often seemed more like bystanders in a debate among the nine.  And they all seemed to have their minds made up, more or less.  If there are swing votes, look to Chief Justice Roberts or Justice Kennedy.  Although they seemed set in their positions, they seemed perhaps the least set.  

Substantively, there were few surprises.  Remember, we've heard these arguments before--in the NAMUDNO case, which the Court ultimately resolved by allowing the jurisdiction to bail out (and thus avoided the constitutional question, although the parties briefed it and it got attention at oral argument).  So these points that came up today are familiar:

• Whether Congress had sufficient evidence to warrant preclearance for selected covered jurisdictions;
• Whether the Section 4(b) coverage formula, which dates back 40 years or so, is sufficiently tailored to the realities of voting discrimination in 2013--that is, whether some covered jurisdictions under this formula really ought not to be covered, and whether others should be covered, given contemporary disparities in registration and offices held and other indicia of voting discrimination;
• Whether Congress violated principles of equal state sovereignty by designating only selected jurisdictions as covered (rather than designating the whole country);
• Whether Section 2 individual suits are a sufficient way to enforce non-discrimination in voting (and therefore whether Section 5 is really necessary); and
• Whether with a string of reauthorizations preclearance will ever not be necessary.

On this last point, it was clear that for some justices the government was in a tough spot.  On the one hand, the government argued that Section 5 deters voting discrimination: Sure, things have gotten a little better since 1965, it said, but Section 5 is still justified because it deters against a back-slide.  But on the other hand, some on the Court wondered whether under this theory Section 5 would ever not be necessary.  (By this reckoning, the government would be justifying Section 5 even when there's no evidence of continued discrimination.)

All this is to say that a majority seemed unpersuaded that this preclearance requirement and this coverage formula were sufficiently tailored--proportionate and congruent, the Court's test--to meet the constitutional evil of voting discrimination that Congress identified.  

This doesn't mean, necessarily, that the whole scheme will go down.  There is an intermediate position: The Court could uphold Section 5 preclearance in theory, but reject the coverage formula in Section 4(b).  But this result would likely doom the whole scheme, in fact.  That's because it seems unlikely that Congress could pass a different coverage formula or that Congress would extend preclearance to the whole country.  Without specifying coverage in a new Section 4(b), Section 5 would be meaningless.

There was a low point.  Justice Scalia went on a tear toward the end of SG Verrilli's argument, opining on why Congress passed each reathorization with increased majorities:

Now, I don't think that's attributable to the fact that it is so much clearer now that we need this.  I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement.  It's been written about.  Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

It's not exactly clear what's the "racial entitlement" in Section 5.  Section 5 is simply not an entitlement provision.  But if we have to identify an entitlement: Maybe the right to vote, without being discriminated against by race?  If so, we can only hope that it's "very difficult to get out of [it] through the normal political processes."  As much as anything else in the arguments today, this comment may tell us exactly why we continue to need preclearance, sadly, even in 2013.

SDS

Fourth Circuit Rejects First Amendment Claims from "Fortune Teller"

In its opinion in Moore-King v. County of Chesterfield, a panel of the Fourth Circuit has upheld the constitutionality of ordinances specifically directed at those defined as "fortune tellers."  The fortune tellers must have a business license, like all other businesses, but must also:

• have a special permit from the Chief of Police, the application for which must include biographical information, fingerprints, criminal history, and an authorization for a background check;
• pay a license tax of $300;
• be located within particular business districts, excluding certain other business districts.

"Justice" Tarot Card circa 15th Century

As to the free speech claim, the Fourth Circuit disagreed with the district judge's finding that the Moore-King's practice was inherently deceptive and thus categorically excluded from First Amendment protection.  In support, the panel interestingly replied upon United States v. Alvarez (the "Stolen Valor case). Yet the panel then struggled with the appropriate First Amendment doctrine that should be applied - - - a not unusual situation in First Amendment litigation - - - rejecting the commercial speech doctrine and time, place or manner analysis and settling upon what it named the "professional speech doctrine." 

As the government complies with the professional speech doctrine by enacting and implementing a generally applicable regulatory regime, the fact that such a scheme may vary from profession to profession recedes in constitutional significance. Just as the internal requirements of a profession may differ, so may the government’s regulatory response based on the nature of the activity and the need to protect the public. [citation omitted] With respect to an occupation such as fortune telling where no accrediting institution like a board of law examiners or medical practitioners exists, a legislature may reasonably determine that additional regulatory requirements are necessary.

The panel then engaged in little analysis, except to say that this did not mean that the government had "carte blanche" but that it held that the government "regulation of Moore-King's activity falls squarely within the scope of that doctrine."

As to Free Exercise, the panel rejected Moore-King's qualifications to assert the claim:

Moore-King’s beliefs more closely resemble personal and philosophical choices consistent with a way of life, not deep religious convictions shared by an organized group deserving of constitutional solicitude.

In addition to the First Amendment claims, Moore-King had also challenged the regulatory scheme on the basis of Equal Protection, although this argument was largely predicated upon her First Amendment interests as the fundamental rights that would trigger strict scrutiny.  Again, the Fourth Circuit affirmed the district judge's grant of summary judgment in favor of the government.

This is a case ripe for critique and would make a terrific subject for student scholarship.

RR
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Eleventh Circuit Affirms Preliminary Injunction Against Florida's Mandatory Drug Testing of Welfare Recipients

In its unanimous panel opinion today in Lebron v. Sec't Florida Dep't of Children & Families, the Eleventh Circuit affirmed a district judge's grant of a preliminary injunction against Florida Statute §414.0652 requiring drug testing of all persons who receive public benefits. 

Recall that 16 months ago, Federal District Judge Mary Scriven issued a preliminary injunction against the controversial law championed by equally controversial governor Rick Scott requiring drug testing for each individual who applies for benefits under the federally funded TANF (Temporary Assistance for Needy Families) program to take a drug test, which must occur at an "approved laboratory" and be paid for by the applicant.   As the Eleventh Circuit panel made clear, it was not resolving "the merits of the constitutional claim" but only addressing "whether the district court abused its discretion in concluding that Lebron is substantially likely to succeed in establishing that Florida’s drug testing regime for TANF applicants violates his Fourth Amendment rights."

 

"Florida Scene" by Albert Bierstadt

 

Nevertheless, the Eleventh Circuit's opinion, authored by Judge Rosemary Barkett, left little room to argue that the statute could survive a constitutional challenge.  Barkett observed that in the "specific context of government-mandated drug testing programs, the Supreme Court has exempted such programs from the Fourth Amendment’s warrant and probable cause requirement only where such testing 'fit[s] within the closely guarded category of constitutionally permissible suspicionless searches,'" requiring that the "proffered special need for drug testing must be substantial,” citing Chandler v. Miller, 520 U.S. 305 (1997).  These special needs include "the specific risk to public safety by employees engaged in inherently dangerous jobs and the protection of children entrusted to the public school system’s care and tutelag."  The Eleventh Circuit easily found that welfare recipients did not fall into a special needs category:

The question is not whether drug use is detrimental to the goals of the TANF program, which it might be. Instead, the only pertinent inquiry is whether there is a substantial special need for mandatory, suspicionless drug testing of TANF recipients when there is no immediate or direct threat to public safety, when those being searched are not directly involved in the frontlines of drug interdiction, when there is no public school setting where the government has a responsibility for the care and tutelage of its young students, or when there are no dire consequences or grave risk of imminent physical harm as a result of waiting to obtain a warrant if a TANF recipient, or anyone else for that matter, is suspected of violating the law. We conclude that, on this record, the answer to that question of whether there is a substantial special need for mandatory suspicionless drug testing is “no.”

The Eleventh Circuit also rejected Florida's "consent" argument.  Because under Florida’s program an applicant is required to sign an acknowledgment that he or she consents to drug testing, the State argued these consented-to searches are reasonable under the Fourth Amendment.  The Eleventh Circuit deemed Florida's reliance on Wyman v. James, 400 U.S. 309 (1971) "misplaced," because there the home visit by the social worker as a condition of receiving welfare benefits was not considered a search, while drug testing does constitute a search. 

The Eleventh Circuit briefly discussed "unconstitutional conditions," a theme that Judge Jordan, in a brief concurring opinion, echoed. But Jordan's discussion of unconstitutional conditions provided perhaps the only possibility that Florida might ever prevail, although interestingly relying largely upon First Amendment doctrine.

Judge Jordan's concurring opinion, however, questioned the outcome of any test requiring that the means chosen serve the government interest:

I am skeptical about the state’s insistence at oral argument that the Fourth Amendment permits the warrantless and suspicionless drug testing of all TANF applicants even if the evidence shows, conclusively and beyond any doubt, that there is 0% drug use in the TANF population. The state’s rationale—that such drug testing is permissible because the TANF program seeks to “move people from welfare to work”—proves too much. Every expenditure of state dollars, taxpayers hope, is for the purpose of achieving a desirable social goal. But that does not mean that a state is entitled to require warrantless and suspicionless drug testing of all recipients of state funds (e.g., college students receiving Bright Futures scholarships, see Fla. Stat. § 1009.53) to ensure that those funds are not being misused and that policy goals (e.g., the graduation of such students) are being achieved. Constitutionally speaking, the state’s position is simply a bridge too far.

The consensus of the federal judges who have considered the Florida statute's constitutionality does seem to be that the statute has definitely gone "too far."

RR
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Second Amendment Doesn't Protect Concealed Carry, Tenth Circuit Rules

A three-judge panel ruled yesterday in Peterson v. Martinez that the Second Amendment doesn't protect a person's right to carry a concealed weapon in public.  The court didn't even apply a particular level of scrutiny or other constitutional test, because it ruled as a threshold matter that the Second Amendment doesn't even apply--that concealed carry doesn't even come within the Second Amendment's sweep.

The plaintiff in the case challenged a Colorado law that allows concealed carry permits for Colorado citizens only (and not out-of-staters).  The plaintiff was a Washington resident, and he therefore didn't qualify.  He argued that the ban on concealed carry for out-of-staters violated the Second Amendment, the right to travel, and Article IV Privileges and Immunities.

In ruling against the plaintiff on his Second Amendment claim, the court quoted Robertson v. Baldwin (1897), which said that "the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons."  The court recognized this as dicta, but said that it followed Supreme Court dicta nearly as closely as it followed holdings, and, in any event, the Court in neither Heller nor McDonald clarified things.  (If anything, the court said, those cases only strengthened the Robertson language.)  Moreover, the court said that bans on concealed carry are "longstanding."  For these reasons, it ruled that the Second Amendment didn't even apply--that concealed carry doesn't fall within the Second Amendment's protection.

Judge Lucero concurred, writing that even if concealed carry fell within the Second Amendment, Colorado's ban on concealed carry for out-of-staters would satisfy the appropriate constitutional test--intermediate scrutiny--because of the state's interest in public safety, and because much of the information necessary to determine whether an individual is qualified for concealed carry is kept in locally maintained databases.  In other words, the state couldn't promote its interest in public safety by licensing out-of-staters, because it couldn't get the information necessary to determine whether they qualified based on other criteria.

The court also rejected the plaintiff's right-to-travel and Article IV claims.  As to the right to travel, the court said that Colorado's ban isn't anything like the kinds of infringements on the right that other courts, including the Supreme Court, have recognized.  As to Article IV, it said that concealed carry is not a privilege or immunity protected by Article IV, as evidenced by the longstanding bans on concealed carry (the same reason why it ruled that concealed carry isn't covered by the Second Amendment).

The ruling came the same day as the Seventh Circuit's en banc ruling overturning Illinois's law banning carrying ready-to-use guns in public.  The two bans are different, though, and the courts' approaches are, too.  Thus the Seventh Circuit looked to whether carrying a ready-to-use gun outside the home goes to self-defense; it said that it did, and that Illinois's ban thus violated the Second Amendment.  The Tenth Circuit looked to whether concealed carry even comes within the Second Amendment's reach.  It looked to history to conclude that it doesn't, and thus upheld Colorado's ban on concealed carry for out-of-staters.

SDS

Padilla Rule Does Not Apply Retroactively

The Supreme Court ruled this week in Chaidez v. United States that the rule announced in Padilla v. Kentucky (2010)--that a criminal defense attorney has to advise his or her client of the deportation risks of a guilty plea--does not apply retroactively to cases already final on direct review.

Retroactivity is governed by the rule in Teague v. Lane (1989).  Under that case, a person whose conviction is already final may not benefit from a "new rule" announced in a subsequent case.  That is: If the Court crafts a "new rule," it doesn't apply retroactively.  Only the application of a settled rule applies retroactively.  Thus the question here was whether the Padilla rule--that an attorney provides ineffective assistance of counsel under Strickland v. Washington by failing to advise the client that he or she could be deported if he or she pleads guilty--is "new." 

The Court in Chaidez said that the usual Strickland/IAC case does not produce a new rule, and therefore would apply retroactively.  But it also said that Padilla was a different sort of IAC case.  It was different because the Court in Padilla had to first determine whether the Strickland/IAC analysis applied at all to a case like that--a case involving collateral, not direct, consequences of an attorney error.  That was an open question before Padilla--and one that many states had resolved against the criminal defendant.  Therefore when the Court announced its rule in Padilla, it broke new ground: it answered an open question, and it answered it in a way that cut against a good deal of state and lower federal court jurisprudence.  This, it said in Chaidez, meant that Padilla set out a new rule, and that it would not apply retroactively.

Justices Sotomayor, joined by Justice Ginsburg, dissented, arguing that Padilla did not set out a new rule, but instead simply applied the Strickland rule to a new set of facts.

SDS