Friday, July 18, 2014
What does the Tenth Circuit Court of Appeals panel decide in its 106 page divided opinions in Bishop v. Smith? It's complicated.
But essentially the Tenth Circuit affirms the district judge's opinion finding the Oklahoma ban on same-sex marriage unconstitutional and extends to Oklahoma its own ruling in Kitchen v. Herbert (by this same panel) from a few weeks ago finding Utah's same-sex marriage prohibition unconstitutional.
The complications are caused in part by the procedural posture of the case. For the majority opinion, authored Judge Carlos Lucero, and joined by Judge Jerome Holmes (as was Herbert v. Kitchen), the major issue was the standing of the plaintiffs, specifically on the "redressability" prong of standing. Recall that Oklahoma has both a constitutional amendment and a statute limiting marriage to "a man and a woman" and that the Oklahoma constitutional amendment not only prohibits same-sex marriage but prohibits its recognition even if valid in another state.
The plaintiffs, in a lawsuit filed in 2004 soon after the state constitutional amendment was adopted, challenged only the state constitutional amendment but not the statute.
Affirming the district judge, the Tenth Circuit held plaintiffs nevertheless had standing because "the statutory prohibitions are subsumed in the challenged constitutional provision, an injunction against the latter’s enforcement will redress the claimed injury." However, again affirming the district judge, the plaintiffs did not have standing to challenge the "recognition" portion of the constitutional amendment because the defendant - - - the clerk of court - - - could not redress the non-recognition injury.
This problem as to the non-recognition of marriage claim is further complicated by the fact that the Tenth Circuit, in considering a dismissal of the Governor and Attorney General as defendants who could redress the injury stated - - - or seemed to state? - - - that the Clerk of the Court was the correct defendant. Thus, under a "law of the case" argument, the courts should be bound by that determination. The Tenth Circuit panel decided it was not bound, in part because of the "new evidence" of an affidavit by the Court Clerk describing her duties. It also rejected a nonseverability of the recognition and nonrecognition portions of the provision, finding that because it had not been made earlier it was waived.
As to the merits, the majority held that it was governed by its ruling in Kitchen v. Herbert, although facts and arguments differed "in some respects," the "core holdings are not affected by those differences." The panel majority did discuss two additional arguments: a Baker v. Nelson argument that lower courts were not free to consider doctrinal developments and the addition of a government interest that "children have an interest in being raised by their biological parents."
Judge Holmes concurred separately to discuss why "animus" was not an appropriate analysis. Judge Holmes notes that the district judge "wisely" did not rely on animus, and that most of the other decisions invalidating same-sex marriage laws have "exercised the same forebearance." But, he noted, several other district judges have relied on animus, citing Baskin v. Bogan, Henry v. Himes, DeLeon v. Perry, and Obergefell v. Wymyslo - - - interestingly none of which are in the Tenth Circuit - - - and he used the concurrence to endeavor "to clarify the relationship between animus doctrine and same-sex marriage laws and to explain why the district court made the correct decision in declining to rely upon the animus doctrine."
In his relatively brief partially dissenting opinion, Judge Paul Kelly contended that there was no standing to challenge the constitutional amendment absent a challenge to the statute and would not reach the merits. However, he also disagreed on the merits, as he did in the panel's decision in Kitchen v. Herbert. For Judge Kelly, as he phrases it here:
Removing gender complementarity from the historical definition of marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process. Absent a fundamental right, traditional rational basis equal protection principles should apply, and apparently as a majority of this panel believes, the Plaintiffs cannot prevail on that basis. Thus, any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.
This will be the heart of the matter when - - - rather than if - - - these cases reach the United States Supreme Court. For now, however, the Tenth Circuit stayed its "mandate pending the disposition of any subsequently-filed petition for writ of certiorari."
July 18, 2014 in Courts and Judging, Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Sexual Orientation, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Saturday, July 5, 2014
The Supreme Court this week enjoined the exemption for religious non-profits from the requirement that employer group-health insurance plans include contraceptives. That exemption allowed a religious nonprofit to notify its health insurer or third-party administrator (using "EBSA Form 700") that it had a religious objection to providing contraceptive coverage; at that point, the insurer or administrator would have to provide contraceptives directly to the organization's employees, free of charge. This week's short, unsigned Order halted the use of EBSA Form 700 and said that petitioner Wheaton College, a religious college in Wheaton, Illinois, could instead write a letter to HHS informing the agency that it is a religious organization and that it has a religious objection to providing coverage for contraceptive services.
In short, the ruling replaced HHS's process for religious exemption (EBSA Form 700) with its own (a letter to HHS).
The ruling strikes a second serious blow to the contraception requirement. (The first came earlier this week in Hobby Lobby, which allowed closely-held, for-profit corporations to exempt themselves from certain contraceptives under the requirement, but almost certainly opened up a much wider hole in the requirement (and potentially in many other government regulations).) The Court was careful to write that its ruling was not a conclusion on the merits. But it's hard to read it any other way, particularly in light of the mertis discussion in the dissent, the fact that the Court drafted its own exemption procedure for religious non-profits (supplanting HHS's procedure), and the Court's suggestion that it'll take up the merits soon enough.
The ruling isn't clear on how religious non-profits' insurers or administrators will have to provide contraceptive coverage. Here's the problem: The insurers or administrators only have to provide contraceptive coverage directly to employees upon learning that a religious non-profit objects, usually through receipt of the EBSA Form 700; but the Court's Order says that Wheaton College and by extension other religious non-profits don't have to complete that form. This leaves it to HHS to figure out whether and how to require insurers and administrators to provide contraceptive coverage directly to the organization's employees.
The Order is strange on several levels. For one, it replaced the HHS exemption (EBSA Form 700) with its own (a letter to HHS). But it's not at all clear that the Court's exemption is any less intrusive on Wheaton College's freedom of religion (at least as the College has defined it in challenging EBSA Form 700): Why is writing a letter to HHS any less intrusive than filing Form 700 and sending it to the insurers and administrators? Wheaton College claimed that the mere certification of its religious objection to the contraception requirement violated its religion (because it made Wheaton College complicit in someone else providing contraception), so why is the letter any better than the form?
For another, it's also not clear why the Court would take such an aggressive action (essentially overruling a valid federal rule and replacing it with its own) at this stage of the litigation (on an application for an injunction), when the circuits are split on the issue (which, as the dissent points out, has been a basis for denying an injunction by some of the very justices who joined the Court in this Order (including Chief Justice Roberts)). This hardly seems like a Court merely calling balls and strikes.
For yet another, the Order seems inconsistent with the Court's ruling just earlier this week in Hobby Lobby. In that case, the majority pointed to HHS's exemption for religious non-profits (the exact same exemption at issue here) as evidence that the contraception requirement for closely held for-profits wasn't narrowly tailored--that is, that the exemption was a way that the government could achieve its interest in providing contraception while still giving closely held for-profits an out. Yet in this later ruling, the Court stepped back from that exemption and replaced it with its own.
Finally, there's the strangeness that a government-created religious exemption could itself violate free religion. This is the point that Judge Posner made so strongly in his opinion rejecting Notre Dame's challenge to the exemption.
Justice Sotomayor wrote a lengthy and vigorous dissent, joined by Justices Ginsburg and Kagan, covering everything from the extraordinary relief the Court granted under the very high standard of the All Writs Act to the merits. She also distinguished the Little Sisters case, in which the Court also allowed a letter to replace the EBSA Form 700: Little Sister's third-party administrator was itself a church plan and exempt from the contraception requirement, so nobody's access to contraception was affected. Here, the Court's injunction risks depriving employees of Wheaton College of contraception, because the insurer or the administrator only have to provide it upon receipt of the EBSA Form 700. But under the Court's Order, they won't receive the EBSA Form 700.
As with Hobby Lobby, it's clear that this ruling will extend far beyond the facts of this particular case, likely even farther than the Court itself thought. How far? As with Hobby Lobby, only time will tell.
Thursday, July 3, 2014
The Louisiana Supreme Court this week upheld the state's prohibition on the possession of firearms by convicted felons against a challenge that the law violated the state's gun-rights amendment. The court described the prohibition as "effective, time-tested, and easily understandable," and said that "[c]ommon sense and the public safety allow no other result."
Lousisiana's gun-rights amendment is notable because it explicitly sets strict scrutiny as the standard for laws infringing on the right to keep and bear arms:
The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.
Article I, Section 11. Louisiana voters enacted the amendment to ensure that laws regulating guns are subject to the strictest standard of review (and not some lower standard that the courts might have used under the Second Amendment and Heller.) The previous version of the state constitution read, "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person."
The court, with little analysis, concluded that Louisiana's law banning the possession of guns by convicted felons for a period of 10 years after their release met strict scrutiny. The court said that the state had a compelling interest in public safety, and that this ban was easily narrowly tailored to meet that interest (again, with little serious analysis). The court also looked to legislative history of the amendment that suggested that the amendment wouldn't affect gun laws already on the books at the time of the amendment.
The court's cursory analysis (under strict scrutiny, no less) says that certain gun restrictions get a free pass, and that provisions like Louisiana's amendment are strong on paper but but weaker in application. It also suggests that the amendment, with its strict scrutiny test, bit off more than it can chew.
Wednesday, July 2, 2014
The Supreme Court's ruling in Hobby Lobby this week opened up a potential free-for-all for closely held corporations to challenge all types of federal government regulations in the name of the owners' religious beliefs. (The only requirement: the reg has to pose a substantial burden on the belief. But we saw in Hobby Lobby itself how easy it is to meet that standard.) If so, those regs would be subject to RFRA's strict scrutiny test. That test requires the government to show that its regulation is the least restrictive way that it can achieve its compelling government interest--a tall order, indeed, and one that the government in other contexts can almost never satisfy.
In other words, the ruling seems to invite a religious exception for unknown numbers of federal laws. The majority dismissed this worry and did its best to cabin the ruling, but in truth only time will tell how far Hobby Lobby reaches. We can expect to a flurry of cases testing this.
So: What now?
ConLawProfBlog's own Ruthann Robson answers the question in her excellent post over at The London School of Economics Blog. Robson says that Congress has three ways to undo the Hobby Lobby ruling: (1) redefine "person" in the Dictionary Act to exclude for-profits; (2) change the level of scrutiny in RFRA (to rational basis review, consistent with the First Amendment standard); or (3) repeal RFRA entirely.
You might say that these options are unfriendly to religions. But Robson tells us why it's really the ruling itself that's religion-unfriendly. Robson argues that the ruling actually creates a disincentive for Congress to grant exemptions or accommodations to federal laws for religious organizations. That's becuase HHS's exemption for religious organizations (like Notre Dame, Little Sisters, and the like) was Exhibit A in the Court's conclusion that the so-called contraception mandate was not the least restrictive way for Congress to require insurers to provide contraception for women. (After all, if Congress could create an exemption for religious organizations, there's no reason why it couldn't similarly create an exemption for closely held corporations with religious owners. The fact that Congress had this alternative (and used it for religious organizations, but not for closely held corporations), according to the Court, shows why the so-called contraception mandate wasn't the best tailored way for Congress to achieve its goal.)
Robson's right. And she's right in arguing that Congress was sloppy and short-sighted in enacting RFRA in the first place, and that now, after Hobby Lobby, it may wreak all sorts of as-yet-unknown havoc. She concludes:
While Congress should take care when seeking to "reverse" a Supreme Court opinion, Congress did not take such care when ti sought to "overrule" Smith by enacting RFRA. Now Congress should act quickly and firmly to remedy the problem it caused by enacting RFRA. What Congress giveth, it can taketh away. And it should.
Tuesday, July 1, 2014
In his opinion today in Love v. Beshear, Judge John Heyburn held that the Kentucky provisions prohibiting same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment, but stayed the issuance of an injunction pending a resolution by the Sixth Circuit.
Recall that in February, Judge Heyburn ruled in Bourke v. Beshear that Kentucky's statutory and state constitutional provisions defining marriage as limited to one man and one woman violate the Fourteenth Amendment's Equal Protection Clause when applied to same-sex spouses married in another state.
Today's opinion considers those same constitutional and statutory provisions - - - KY. CONST. § 233A; KY. REV. STAT. ANN. §§ 402.005, .020(1)(d) (West 2014) - - - but in the context of a right to marry under Kentucky law. And, not surprisingly, today's opinion reaches similar conclusions to the earlier case of Bourke v. Beshear.
Judge Heyburn quickly concludes that Baker v. Nelson, 409 U.S. 810 (1972), in which the Supreme Court dismissed “for want of a substantial federal question” a challenge to a Minnesota Supreme Court ruling concluding that a same-sex couple did not have the right to marry under the federal Due Process or Equal Protection Clauses, is not precedential. It "is difficult to take seriously the argument that Baker bars Plaintiffs’ challenge," given that the rule for the precedential value of a summary disposition includes the exception "unless doctrinal developments indicate that the Court would rule differently now." As Judge Heyburn states: "Since 1972, a virtual tidal wave of pertinent doctrinal developments has swept across the constitutional landscape."
In considering these doctrinal developments and the applicable standard of scrutiny under Equal Protection doctrine, Judge Heyburn first considers the right at stake. He analyzes whether the right to marry is a fundamental right, but concludes that this precise question is one that "neither the Supreme Court nor the Sixth Circuit has answered." Heyburn declines to engage in "overreaching" on this issue, because the fundamental rights analysis is unnecessary given the analysis regarding sexual orientation classifications.
Judge Heyburn's conclusion on the level of scrutiny to be applied is intermediate scrutiny. Note that this is a departure from his earlier decision in Bourke to apply rational basis. Here, his conclusion - - - admittedly not supported by specific Supreme Court or Sixth Circuit precedent - - is that "homosexual persons constitute a quasi-suspect class based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi- suspect.” He reaches this conclusion by applying four factors: historical discrimination; the ability to contribute to society; immutable defining characteristics; and political powerlessness. Thus, the opinion would ordinarily then apply the intermediate scrutiny standard as articulated by the court: "“substantially related to an important governmental objective."
But Judge Heyburn takes a different path, similar to the one he took in Bourke v. Beshear:
Ultimately, Kentucky’s laws banning same-sex marriage cannot withstand constitutional review regardless of the standard. The Court will demonstrate this by analyzing Plaintiffs’ challenge under rational basis review.
In discussing Kentucky's profferred interests, Judge Heyburn writes that the state's "arguments are not those of serious people." Moreover, he concludes that the means chosen are not rationally related:
Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses. Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have.
Judge Heyburn's last section of the opinion addresses Kentuckians, but in a much more restrained manner than his earlier opinion in Bourke. In Love v. Beshear, Judge Heyburn notes
Since this Court’s Bourke opinion [in February 2014], the legal landscape of same-sex marriage rights across the country has evolved considerably, with eight additional federal district courts and one circuit court invalidating state constitutional provisions and statutes that denied same-sex couples the right to marry.
Heyburn cites the Tenth Circuit's opinion in Kitchen v. Herbert, as well as the district court opinions in Baskin v. Bogan (Indiana); Wolf v. Walker (Wisconsin); Whitewood v. Wolf (Pennsylvania); Geiger v. Kitzhaber (Oregon); Latta v. Otter (Idaho); De Leon v. Perry (Texas); DeBoer v. Snyder (Michigan); and Bostic v. Rainey (Virgina).
He adds that with "this opinion, this Court joins their company."
It remains to be seen, however, whether the Sixth Circuit will also join this increasingly large assembly.
July 1, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)
Thursday, June 26, 2014
United States Supreme Court Declares Massachusetts' Buffer Zone Unconstitutional in McCullen v. Coakley
A unanimous Court, albeit in separate opinions, found the Massachusetts statute imposing a 35 foot buffer zone around places where abortions are performed violates the First Amendment in its opinion in McCullen v. Coakley, reversing the First Circuit.
Writing for the Court, Chief Justice Roberts - - - who, unusually, did not ask any questions during the oral argument - - -found that the statute was not subject to strict scrutiny because it was content and viewpoint neutral, despite arguments to the contrary. However, the Court found that the statute failed the so-called "time, place, and manner" test articulated in Ward v. Rock Against Racism, 491 U. S. 781 (1989). The Court's opinion - - - joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan - - - concluded that the statute burdened more speech than necessary and was not sufficiently closely tailored. In large part, this was based on the statute's exceptional coverage of public streets and sidewalks. It was also based on the specific petitioners in the case, who are not "protesters," but people who "attempt to engage women approaching the clinics in what they call 'sidewalk counseling,' which involves offering information about alternatives to abortion and help pursuing those options." Further, the Court articulated other less restrictive means available to Massachusetts, including targeted injunctions, and found that the record did not support the need for Massachusetts' sweeping approach. As the Court concluded:
Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a tradi tional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment.
Justice Scalia's concurring opinion, joined by Justices Kennedy and Thomas, criticizes the Court's opinion as one
that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. That is the first half of the Court’s analysis, which concludes that a statute of this sort is not content based and hence not subject to so-called strict scrutiny. The Court reaches out to decide that question unnecessarily—or at least unnecessarily insofar as legal analysis is concerned.
Justice Alito, wrote separately but briefly to express his belief that the statute discriminates on the basis of viewpoint.
The takeaway is this: In a unanimous opinion, the Court ruled that Massachusetts went too far in seeking to protect the reproductive rights of women seeking abortions and infringed the First Amendment rights of those who seek to counsel them to change their minds. The Court's opinion approves more narrow methods governments might use to protect the reproductive rights of women entering clincs. But four Justices seem inclined to find a violation of the First Amendment in even more narrow government attempts.
Wednesday, June 25, 2014
In a divided decision, the Tenth Circuit opinion in Kitchen v. Herbert held that the
Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that [Utah's state constitution's] Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny.
Affirming the district court's decision as well as its analysis, the Tenth Circuit panel majority, authored by Judge Carlos Lucero, and joined by Judge Jerome Holmes, applied strict scrutiny because it found that the "right to marry is a fundamental liberty."
In applying strict scrutiny, the panel majority assumed that three of the four interests advanced by the government - - - (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction” - - - were compelling. However, the court found that the means chosen - - - the prohibition of same-sex marriage - - - did not sufficiently serve these interests. Instead, each of the
justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples.
The court noted that Justice Scalia, dissenting in Windsor, and numerous district judges, reached a similiar conclusion. The majority observed that the lack of narrow tailoring is "often revealed" by underinclusiveness, finding it important that Utah did not ban nonprocreative marriages.
The court's analysis of each of the three rationales is substantial and erudite, firmly rooted in precedent and well-reasoned.
As to the fourth and final interest asserted by the government - - -“accommodating religious freedom and reducing the potential for civic strife,” - - - the court reasoned that "the Supreme Court has repeatedly held that public opposition cannot provide cover for a violation of fundamental rights" and emphasized that its "decision relates solely to civil marriage."
Dissenting from the more than 60 page majority opinion, Judge Paul Kelly wrote more than 40 pages in disagreement (although he did agree with the majority on the standing issue, making the opinion concurring in part). Not surprisingly, he disagreed with the level of scrutiny to be applied; he concluded that there was no fundamental right at issue and would have applied rational basis scrutiny. Also not surprisingly, he would have concluded that Utah's ban on same-sex marriage satisfied this most easily satisfied level of scrutiny given the state's interests in (1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area.
More surprisingly, Judge Kelly found that the Supreme Court's per curiam dismissal in 1972 of Baker v. Nelson, for "want of a substantial federal question" controlling ; it "should foreclose the Plaintiffs’ claims, at least in this court," notwithstanding the Court's decision invalidating the federal Defense of Marriage Act's ban on recognition of same-sex marriage last term in Windsor.
If - - and most probably when - - - the United States Supreme Court does consider the issue of state laws banning same-sex marriage, Baker v. Nelson will be irrelevant and the Court will directly grapple with issues if fundamental constitutional rights and levels of scrutiny under the Fourteenth Amendment's due process and equal protection doctrines.
Given that the Tenth Circuit stayed its decision pending the disposition of any subsequently filed petition for certiorari it may be that both sides seek review from the United States Supreme Court,
June 25, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)
A unanimous Supreme Court today ruled in Riley v. California that officers must obtain a warrant before searching an arrrestee's cell phone incident to arrest. The ruling deals a blow to law enforcement, to be sure. But it only means that law enforcement must obtain a warrant before searching a cell phone, or satisfy some other exception to the Fourth Amendment's warrant requirement (like exigent circumstances), before conducting a search of the phone. In general, this should not be overly difficult, assuming that an officer can meet the requirements for a warrant: an arresting officer need only drop a seized cell phone into a Faraday bag and obtain a warrant for a later search. Again: the ruling still preserves other exceptions to the warrant requirement, so that officers can search a phone without a warrant if there are exigent circumstances, for example.
The ruling breaks little new ground on Fourth Amendment analysis. Instead, it applies a familiar framework to a relatively new technology, cell phones. (The ruling applies to both smart phones and flip phones.)
The Court applied the familiar balancing test, "assessing, on the one hand, the degree to which [the search] intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton. As to government interests, the Court looked to the two recognized interests in a search incident to arrest in Chimel: to remove weapons that threaten officer safety or could be used for escape, and to prevent the destruction of evidence.
The Court said that the government lacked an interest in protecting officer safety or preventing escape, because "a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee's escape." It said that the government lacked an interest in protecting evidence, because officers can easily protect evidence on a seized cell phone (by turning it off, or putting it in a Faraday bag, to prevent remote wiping, for example). (The Court said that there was little evidence that destruction of evidence was even a problem.)
On the other side of the balance, the Court recognized the massive storage capacity and vast personal information contained in cell phones, and contained remotely but accessible by cell phones, and said that the search was a significant invasion of privacy, even if diminished in the context of an arrest.
On the government interest side, Robinson concluded that the two risks identified in Chimel--harm to officers and destruction of evidence--are present in all custodial arrests. There are no comparable risks when the search is of digital data. In addition, Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. As search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.
Justice Alito wrote a concurrence (for himself alone), arguing that the search-incident-to-arrest rule should be based on the government's interest in "the need to obtain probative evidence," and not the two Chimel interests. He also called on Congress and state legislatures "to assess and respond to to [technological advances] that have already occurred and those that almost certainly will take place in the future."
Monday, June 23, 2014
The Second Circuit today released a redacted version of the DOJ/OLC memo outlining the government's legal authority for the use of a drone attack to kill Anwar al-Aulaqi (sometimes spelled al-Awlaki). We've blogged extensively about this issue, including here, on the earlier released white paper outlining the government's authority to conduct the same attack.
The released version does not include the first 11 pages of the memo, presumably including the information that the government passed on to the OLC about al-Awlaki that formed the basis of the analysis. It's not clear whether that first 11 pages included other material or analysis. (The released version starts with "II.") There are other redactions throughout, especially in the portion analyzing the CIA's authority to conduct drone attacks.
The analysis in the memo differs slightly from the analysis in the earlier white paper, but, because of the redactions, it's not clear how much this matters. Thus, for example, the analysis released today makes a careful distinction between DoD authority and CIA authority to conduct a targeted drone attack. (The earlier white paper didn't make this clear distinction.) But it's not entirely clear why or how that distinction is significant, given that much of the CIA analysis is redacted. The analysis released today is also more fact specific. (The earlier white paper didn't so clearly limit itself to the facts of one case.) But the memo today redacts the facts, so we don't know them.
Other than those points, the analysis released today doesn't appear to be importantly different than the earlier white paper.
As we've noted, and as others have noted, the analysis leads to the surprising result that the government may be able to kill someone by drone attack more easily than it may detain them (with due process under Hamdi). Still, we don't know this for sure, because we don't know precisely what processes the government used in killing al-Awlaki: that detail is redacted from the memo.
The memo starts by outlining the statutory prohibition on foreign murder of a U.S. national--the federal provision that outlaws one U.S. national from killing another overseas. That provision, 18 U.S.C. 1119(b), says that "[a] person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113." Section 1111 penalizes "murder," defined as "the unlawful killing of a human being with malice aforethought." The memo thus centers on whether al-Aulaqi's killing was "unlawful."
The memo says that the killing was not unlawful, because the prohibition includes the "recognized justification" of "public authority"--that is, the government's ability to kill under its public authority. As to the Defense Department's use of drones, the memo says that (1) the president had executive war powers authorized by Congress under the AUMF, (2) the AUMF authorized the president to use all necessary force against al-Qaida and associated forces (the OLC said that the AUMF included associated forces in an earlier memo), (3) al-Aulaqi was a member of al-Qaida or associated forces (AQAP) who posed a "continued and imminent threat" to the U.S., and (4) the DoD was acting pursuant to statutory authorization in targeting and killing al-Aulaqi. Moreover, the memo says that al-Aulaqi's killing comports with the laws of war. That's because DoD "would carry out its operation as part of the non-international armed conflict between the United States and al-Qaida, and thus that on those facts the operation would comply with international law so long as DoD would conduct it in accord with the applicable laws of war that govern targeting in such a conflict." The memo said that this operation in Yemen is part of that conflict, even though Yemen is not within the area of that conflict. Finally, the memo says that the method of killing complies with the laws of war--that is, that the targeted drone attack complies with the principle of distinction, it would minimize civilian casualties, and it would not violate prohibitions on "treachery" and "perfidy" (because those "do not categorically preclude the use of stealth or surprise, nor forbid military attacks on identified, individual soldiers or officers . . . and we are not aware of any other law-of-war grounds precluding the use of such tactics.").
The memo drew the same, or very similar, conclusions as to the CIA's use of a drone strike, but that section was largely redacted.
(The memo also said that another murder-abroad statute similarly did not prohibit the strike, and that the War Crimes Act did not prohibit it, because al-Aulaqi was still an active, fighting beligerent, and an allowable target under the laws of war.)
As to Fourth- and Fifth Amendment protections, the memo says that a high-level decision-maker ("the highest officers in the intelligence community") can make a determination to use lethal force and authorize a strike. (That's about all it said: this portion of the memo is also highly redacted.)
The memo makes clear that this is all context specific: the "facts" given to OLC that form the basis of its analysis are "sufficient" for the Office to form its conclusions, but the memo declines to say whether those facts are also necessary. (And we don't know them, in any event, because they're redacted.)
June 23, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Fifth Amendment, Fourth Amendment, Fundamental Rights, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 18, 2014
The Brennan Center released a report this week on the state of voting in the run-up to the 2014 election. Among the highlights:
- Since 2010, 22 states have implemented new voting restrictions, including voter ID requirements, requirements that make registration harder, restrictions on early voting, and restrictions on restoring voting rights for people with past criminal convictions. The report says that "[p]artisanship played a key role" and that "[r]ace was also a significant factor" in enacting restrictions. The 2014 election will be the first election for new restrictions in 15 states, possibly leading to problems on Election Day as those states implement the restrictions for the first time.
- There are ongoing cases challenging restrictions in seven states--Arizona, Arkansas, Kansas, North Carolina, Ohio, Texas, and Wisconsin. More may come.
- Since 2012, 16 states have passed laws to make it easier to vote, including laws that modernize registration, inrease early voting opportunities, allow pre-restration of 16- and 17-year-olds, restore voting rights to people with past convictions, ease voter ID burdens, and expand access by language and absentee voting. These laws will be in effect in 11 states in the 2014 election.
Monday, June 16, 2014
Judge Emmet G. Sullivan (D.D.C.) on Friday dismissed a case brought by a U.S. citizen against FBI agents for torturing and mistreating him as a terrorist suspect in Africa in violation of his constitutional rights.
The plaintiff, Amir Meshal, was visiting Somalia in November 2006. When fighting erupted there, Meshal fled to Kenya. Upon arrival, he was captured by Kenyan soldiers, detained, and later interrogated repeatedly by FBI agents, who used threats, accusations that Meshal was a terrorist, and physical force to intimidate him. Later, Meshal was transferred to Somalia, then Ethiopia, where interrogations by FBI agents continued. Throughout, Meshal was denied outside communication (until U.S. consular officials later gained access to him), access to an attorney, and access to foreign courts. In all, Meshal was detained abroad for four months. He was never charged with a crime.
Meshal filed a Bivens suit for damages against the agents, but Judge Sullivan dismissed the case. Judge Sullivan was highly critical of the U.S. government's treatment of Meshal and of the federal courts' refusal to hear Bivens claims by other U.S. citizens mistreated by government agents. But he nevertheless concluded that the D.C. Circuit's ruling in Doe, the Fourth Circuit's ruling in Lebron, and the Seventh Circuit's ruling in Vance compelled him to dismiss Meshal's case. Doe, Lebron, and Vance all also involved U.S. citizens suing government officers for violations of constitutional right in similar circumstances. The circuit courts all ruled that "special factors" counseled against a Bivens remedy, however, because they all arose in the context of the military and national security.
Given the state of the law, there is no chance of a successful appeal. But that didn't stop Judge Sullivan from delivering a full-throated condemnation of the agents' actions, the courts' rulings, and Congress's failure to create a remedy for U.S. citizens who are mistreated in these situations:
The facts alleged in this case and the legal questions presented are deeply troubling. Although Congress has legislated with respect to detainee rights, it has provided no civil remedies for U.S. citizens subject to the appalling mistreatment Mr. Meshal has alleged against officials of his own government. To deny him a judicial remedy under Bivens raises serious concerns about the separation of powers, the role of the judiciary, and whether our courts have the power to protect our own citizens from constitutional violations by our government when those violations occur abroad.
Wednesday, June 11, 2014
The D.C. Circuit this week rejected a variety of claims by Guantanamo detainees for mistreatment by government officials and guards even after they had been cleared for release by the Combat Status Review Tribunal. The court also rejected the plaintiffs' request to remand the case to amend their complaint.
The case, Allaithi v. Rumsfeld, involved detainee claims of "forced grooming, solitary confinement, sleep deprivation, forced medication, transport in 'shackles and chains, blackened goggles, and ear coverings,' and the disruption of . . . religious practices," even after some of the plaintiffs were cleared for release by the CSRT. The plaintiffs brought claims against government officials and Guantanamo guards under the Alien Tort Statute, the Geneva Convention, the Vienna Convention on Consular Relations, the First Amendment, the Due Process Clause, and the Religious Freedom Restoration Act.
As to the ATS, the court held that the defendants were acting within the scope of their employment, which, under the Westfall Act, transforms their ATS claim into a Federal Tort Claims Act claim against the government. But the plaintiffs didn't pursue administrative remedies under the FTCA, so their case was dismissed.
As to the Vienna Convention, the court said that the Convention confers a private right of action.
As to the other, Bivens claims, the court held, citing its second Rasul ruling, that the defendants enjoyed qualified immunity, or, alternatively, that the case raised special factors counseling against a Bivens remedy.
June 11, 2014 in Cases and Case Materials, Due Process (Substantive), First Amendment, Foreign Affairs, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 27, 2014
The Supreme Court today ruled in Hall v. Florida that a state's use of a rigid cut-off to determine intellectual disability for the purpose of administering the death penalty violates the Eighth Amendment's ban on cruel and unusual punishment. Our oral argument preview is here.
The 5-4 ruling, penned by Justice Kennedy and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, is another in a series of blows against the death the penalty. Justice Alito wrote the dissent, joined by Chief Justice Roberts and Justices Scalia and Thomas.
The case tested Florida's use of a rigid cut-off to determine intellectual capacity for the purpose of administering the death penalty. The Court previously ruled in Atkins v. Virginia (2002) that the Eighth Amendment bars the use of the death penalty for persons with intellectual disabilities. Florida defined intellectual disability with reference to an IQ score of 70 or less. That meant that a defendant with an IQ score above 70 (including the defendant in this case) couldn't introduce further evidence of intellectual disability.
The Court held that this violated the Eighth Amendment's ban on cruel and unusual punishment. It said that Florida's statute could be read to comply with the standard medical definition of intellectual disability (by including consideration of the standard error of measurement in the IQ test), but that the state instead applied it in a rigid way, foreclosing additional evidence of intellectual disability when a defendant has an IQ test above 70. That, the Court said, "disregards established medical practice in two interrelated ways": it takes the IQ score as "final and conclusive evidence of a defendant's intellectual capacity, when experts in the field would consider other evidence"; and it disregards the standard error of measurement in an IQ test. (The standard error of measurement, or SEM, reflects the inherent imprecision in the IQ test and the resulting possible variation in results. It means that an IQ test score really reflects a range of results, not a single number.)
The Court said that a "significant majority of States implement the protection of Atkins by taking the SEM into account." "The rejection of the strict 70 cutoff in the vast majority of States and the 'consistency in the trend' toward recognizing the SEM provide strong evidence of consensus that our society does not regard this strict cutoff as proper or humane."
The ruling is just the latest blow to the death penalty. It means that states can't use a rigid IQ cutoff to determine intellectual disability under Atkins; instead, they have to consider the SEM and other evidence of intellectual disability, consistent with the standard medical approach of measuring intellectual disability.
Wednesday, May 21, 2014
Judge Gladys Kessler (D.D.C.) ordered the government to release videos of force-feeding and medical records of Guantanamo detainee Abu Wa'el Dhiab in today's status conference in Dhiab's habeas case. Recall that Judge Kessler previously entered a temporary restraining order halting force-feedings of Dhiab until today and ordering the government to produce medical records and videotapes.
But Judge Kessler's order today didn't address force feedings. According to Wells Bennet over at Lawfare, that means that force-feedings can resume:
Intriguingly, court and counsel didn't address (so far as I could tell) the TRO's "no force feeding" instruction with respect to Dhiab. Considering that Judge Kessler's prior ruling limiting the ban until today's date of May 21, it seems the prohibition could dissolve as early as tomorrow. For her part, Judge Kessler gestured in this direction, by emphasizing both that her prior ruling was meant to preserve the status quo for so long as needed to handle the emergency motion, and that it did not embody a decision regarding preliminary relief. (The motion for a preliminary injunction, like the larger habeas case, obviously aims to stop Dhiab's force feeding; but the detainee's emergency motion papers did not, strictly speaking, ask the court to take that step.)
Tuesday, May 20, 2014
In his opinion in Whitewood v. Wolf, Judge John E. Jones, III, announced that Pennsylvania would "join the twelve federal district courts across the country" that had declared their respective same-sex marriage bans unconstitutional.
The judge considered both a Due Process and Equal Protection challenge to Pennsylvania's statutory ban on same-sex marriage and found both had merit.
Regarding due process, he concluded that
the fundamental right to marry as protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution encompasses the right to marry a person of one’s own sex. . . . that this fundamental right is infringed upon by 23 Pa. C.S. § 1102, which defines marriage as between one man and one woman and thus precludes same-sex marriage. Accordingly, 23 Pa. C.S. § 1102 is unconstitutional.
Judge Jones' equal protection analysis first considered the proper level of scrutiny for sexual orientation and after extensive discussion of the factors (a modified Carolene Products analysis), he concluded that sexual orientation classifications are quasi-suspect and deserve heightened scrutiny. The application of this standard is relatively brief:
Significantly, Defendants claim only that the objectives are “legitimate,” advancing no argument that the interests are “important” state interests as required to withstand heightened scrutiny. Also, Defendants do not explain the relationship between the classification and the governmental objectives served; much less do they provide an exceedingly persuasive justification. In essence, Defendants argue within the framework of deferential review and go no further. Indeed, it is unsurprising that Defendants muster no argument engaging the strictures of heightened scrutiny, as we, too, are unable to fathom an ingenuous defense saving the Marriage Laws from being invalidated under this more-searching standard.
Resembling many of the other opinions, including yesterday's opinion from an Oregon federal judge, Judge Jones' 39 page opinion acknowledges its part in a growing trend, cites all the other federal cases, includes a reference to Scalia's dissenting opinion in Windsor to support its rationale, and includes an acknowledgement of the divisiveness of the issue but invokes a historical perspective (represented by Plessy v. Ferguson and Brown v. Board of Education) in its relatively brief conclusion.
It differs from other similar opinions in explicitly resting its Equal Protection analysis in intermediate scrutiny befitting a quasi-suspect class.
But the doctrinal differences are less noteworthy than the tide of federal judges (and some state judges) striking down their state laws banning same-sex marriage.
Michael Waldman, writing over at Politico, tells the story of how the NRA rewrote the Second Amendment, not through the Article V process, but through persistent and carefully calculated political action and legal argument. Over time, the NRA's position worked its way into the consciousness of politicians and judges and lawyers and ordinary people, until Heller seemed to many (and obviously most on the Court) like an inevitability. That process--and not raw legal argument, not some new and significant historical find, and certainly not a constitutional amendment--is how we got the individual right to keep and carry guns, according to Waldman.
Waldman, the president of the Brennan Center for Justice at NYU, writes on the occasion of the release of his latest book, The Second Amendment: A Biography.
Waldman's piece in Politico is as much about the political process of constitutional change as it is about the Second Amendment. In that way, it's a how-to for anyone interested in influencing the direction of constitutional law outside the amendment process, and a healthy reminder that a well organized movement can still influence the direction of American constitutional law:
So how does legal change happen in America? We've seen some remarkably successful drives in recent years--think of the push for marriage equality, or to undo campaign finance laws. Law students might be taught that the court is moved by powerhouse legal arguments or subtle shifts in doctrine. The National Rifle Association's long crusade to bring its interpretation of the Constitution into the mainstream teaches a different lesson: Constitutional change is the product of public argument and political maneuvering. The pro-gun movement may have started with scholarship, but then it targeted public opinion and shifted the organs of government. By the time the issue reached the Supreme Court, the desired new doctrine fell like a ripe apple from a tree.
Sunday, May 18, 2014
Judge Gladys Kessler (D.D.C.) on Friday temporarily enjoined the government from force-feeding Abu Wa'el Dhiab, a hunger-striking Guantanamo detainee. Judge Kessler's order also requires the government to produce medical records and videotapes of Dhiab's "forcible cell extractions" for the purpose of "enteral feedings." Judge Kessler will preside over a status conference on May 21 to work some of this out.
This isn't the first time Judge Kessler ruled on the case. In her earlier ruling, on July 10, 2013, she held that 28 U.S.C. Sec. 2241(e)(2) deprived the court of jurisdiction to hear a claim over a Guantanamo detainee's conditions of confinement. She was also highly critical of force feedings in that ruling, however, and telegraphed her likely ruling on the merits, should it ever come to the merits.
It did come to the merits after the D.C. Circuit ruled that Guantanamo detainees could challenge the conditions of their confinement under 28 U.S.C. 2241(e)(2). After that ruling, Dhiab's case came back to Judge Kessler, leading to Friday's ruling.
Judge Kessler's ruling is only temporary. But if this ruling and her prior ruling (in the first round) are any indication, she's almost certain to rule against the practice.
Tuesday, May 13, 2014
Frontline airs the first of its two-part series United States of Secrets tonight. The documentary examines NSA secret surveillance programs developed in the wake of the 9/11 attacks. There's a clip at the link above, and another here, Inside the NSA the Day After 9/11.
Tuesday, April 22, 2014
The Court's opinion in Schuette v. BAMN (Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary), clearly upheld Michigan's Proposal 2, enacted as Article I §26 of the Michigan Constitution barring affirmative action in state universities and subdivisions. The plurality opinion for the Court was authored by Justice Kennedy, and joined by Chief Justice Roberts and Justice Alito. Chief Justice Roberts also authored a brief concurring opinion. Justice Scalia's concurring opinion was joined by Justice Thomas. Justice Breyer also wrote a concurring opinion. Justice Sotomayor's impassioned dissent was joined by Justice Ginsburg. Justice Kagan was recused.
The state constitutional amendment was a reaction to the Court's opinion in Grutter v. Bollinger (2003), upholding the University of Michigan Law School's use of diversity in admissions. But since Grutter, the Court has been decidely less friendly to affirmative action, as in Fisher v. University of Texas.
Recall that the en banc Sixth Circuit majority had relied upon the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief, relying on Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969). At oral arguments, the Justices had seemed hostile to that theory.
Justice Kennedy's plurality opinion for the Court carefully rehearses the cases, but it is probably his rhetoric that is most noteworthy:
This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.
As for Justice Scalia's opinion, it admits that the "relentless logic of Hunter and Seattle would point to a similar conclusion in this case" as the Sixth Circuit understood. However, both Hunter and Seattle should be overruled. Justice Breyer, concurring, would distinguish Hunter and Seattle because Schuette "does not involve a reordering of the political process; it does not in fact involve the movement of decisionmaking from one political level to another."
It is Justice Sotomayor's dissent, joined by Justice Ginsburg, that displays the most heft. At more than 50 pages and almost as lengthy as all the other opinions combined, Sotomayor's opinion is an extended discussion of equal protection doctrine and theory, as well as the function of judicial review. In her last section, she also addresses the "substantive policy" of affirmative action and the difference it makes.
The stark division among the Justices is clear. Sotomayor writes that "race matters." Scalia reiterates that the constitution is "color-blind." Roberts implies that racial "preferences do more harm than good." And Kennedy invokes a First Amendment right to debate race:
Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. . . . The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. . . . It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.
Given this passage, perhaps it is not surprisingly that Justice Kennedy does not cite Romer v. Evans - - - which he authored in 1996 - - - in today's plurality opinion in Schuette. In Romer v. Evans, Kennedy had this to say about Colorado's Amendment 2, which prohibited the enactment of anti-discrimination laws on the basis of sexual orientation:
It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.
Monday, April 7, 2014
Recall that in November 2013 we posted "UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?"
The answer is "no," at least if "soon" means the case discussed in that post, Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer. The petition concentrated on the First Amendment speech rights of the photographer rather than religious rights; the Court denied certiorari today.
Meanwhile, Lady Brenda Hale, a Justice on the UK Supreme Court, appeared at a Comparative and Administrative Law Conference last month at Yale and spoke on the topic of "Religion and Sexual Orientation: The clash of equality rights," posting her written remarks on the UK Supreme Court site. Justice Hall considered the Bull case which we discussed as well as cases from Canada and the EU, all presenting the same basic issue: should religious persons be exempt from anti-discrimination laws? Justice Lady Hale offers some interesting observations: "it is fascinating that a country with an established church can be less respectful of religious feelings than one without." She also discusses direct and indirect discrimination and reiterates a point she made in the Bull case itself:
Both homosexuals and Christians were subject to the same laws requiring them not to discriminate in the running of their businesses. So if homosexual hotel keepers had refused a room to an opposite sex or Christian couple, they too would have been acting unlawfully.
This leads her to proclaim:
If you go into the market place you cannot pick and choose which laws you will obey and which you will not.
This may be an indication of how Lady Brenda Hale would rule in Hobby Lobby so recently argued before the United States Supreme Court, assuming the English Parliament would enact a statute similar to the Religious Freedom Restoration Act.
Another difference: The arguments before the UK Supreme Court are televised live.
April 7, 2014 in Comparative Constitutionalism, Current Affairs, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, International, Religion, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)