Wednesday, July 22, 2015
A unanimous panel of the Eighth Circuit, affirming the district judge, found that North Dakota's abortion regulation based on a "detectable heartbeat" is unconstitutional in its opinion in MKB Management Corp. v. Stenehjem.
North Dakota's 2013 House Bill 1456, codified at N.D. Cent. Code § 14-02.1, mandates physicians determine whether the "unborn child" has a "detectable heartbeat," and if so, makes it a felony for a physician to perform an abortion. The medical evidence submitted was that a "detectable heartbeat" occurs when a woman is about six weeks pregnant.
The court held that a woman's constitutional right to terminate a pregnancy before fetal viability is binding United States Supreme Court precedent, quoting language from Gonzales v. Carhart (2007): "Before viability, a State 'may not prohibit any woman from making the ultimate decision to terminate her pregnancy.'”
However, the Eighth Circuit opinion noted that while it could not depart from the current state of protection of the right to abortion, the United States Supreme Court should reconsider the issue. Essentially, the Eighth Circuit opinion argues that "developments in the unborn" should shift the balance to the ability of the states - - - and not the courts - - - to protect the unborn and assert the interest in "potential life." The court's opinion also discussed the controversial findings that women who have had abortions suffer from emotional ills including regret, as well as repeating evidence that "some studies support a connection between abortion and breast cancer." The court thus concludes, "the continued application of the Supreme Court’s viability standard discounts the legislative branch’s recognized interest in protecting unborn children."
Nevertheless, the opinion clearly finds the North Dakota law unconstitutional.
Wednesday, July 8, 2015
In its opinion in Morales-Santana v. Lynch, a unanimous panel of the Second Circuit has held that the differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child violated equal protection as included in the Fifth Amendment's protections. It creates a conflict in the circuits and sets up another trip to the United States Supreme Court on the issue, the last one having resulted in a 4-4 split as discussed below.
The statutory scheme at issue, the Immigration and Nationality Act of 1952, codified at 8 U.S.C. § 1409(c), was the one in effect when Morales-Santana was born in 1962 outside the US to unwed parents. His parents married each other in 1970 and he was admitted to the US as a lawful permanent resident in 1975. In 2000, Morales-Santana was placed in removal proceedings after a conviction for various felonies and applied for withholding based on derivative citizenship from his father.
Derivative citizenship, which occurs at the moment of birth, is bestowed on a child born abroad to an unwed citizen mother and non‐citizen father has citizenship at birth so long as the mother was present in the United States or one of its outlying possessions for a continuous period of at least one year at some point prior to the child’s birth. By contrast, a child born abroad to an unwed citizen father and non‐citizen mother has citizenship at birth only if the father was present in the United States or one of its outlying possessions prior to the child’s birth for a period or periods totaling at least ten years, with at least five of those years occurring after the age of fourteen. Morales-Santana's father, born in Puerto Rico in 1900, met the one year requirement but not the ten year requirement at the time of his son's birth. Both parties agreed that had Morales‐Santana’s mother, rather than his father, been a citizen continuously present in Puerto Rico until 20 days prior to her nineteenth birthday, she would have satisfied the requirements to confer derivative citizenship on her child. It is this gender‐based difference in treatment that Morales‐Santana claims violated his father’s right to equal protection.
The Second Circuit's decision that the differential requirements for unwed fathers and mothers is unconstitutional must confront several United States Supreme Court decisions that point in a different direction on the equal protection issue in citizenship statutes, including two recent decisions. First, the Court in Nguyen v. INS, (2001) upheld gender discrimination regarding establishment of paternity. The Second Circuit notes that Morales-Santana complied with the statutory provisions upheld in Nguyen: the child was "legitimated" and thus paternity "acknowledged" when his parents married in 1970. Second, and more important, is the Court's per curiam affirmance by an "equally divided Court" in Flores-Villar v. United States in 2011. The Ninth Circuit in Flores-Villar had upheld the differential residency requirement.
Judge Ray Lohier's opinion for the Second Circuit subjects the statutory scheme to intermediate heightened scrutiny under United States v. Virginia (VMI) (1996), rejecting the government's argument that essentially all citizenship statutes should be subject to mere rational basis review.
With regard to the government's proffered interests, the court acknowledged that ensuring a sufficient connection between the child and the United States is important, but then states that the differential treatments of mothers and fathers is unrelated to it: the government
offers no reason, and we see no reason, that unwed fathers need more time than unwed mothers in the United States prior to their child’s birth in order to assimilate the values that the statute seeks to ensure are passed on to citizen children born abroad.
The Second Circuit then recognizes that its "determination conflicts with the decision of the Ninth Circuit in Flores‐Villar, which addressed the same statutory provisions and discussed the same governmental interest in ensuring a connection between child and country."
As to the government's second interest - - - preventing statelessness - - - the court again agrees that it is important, but concludes that this was not a genuine actual interest of the legislation.
Neither the congressional hearings nor the relevant congressional reports concerning the 1940 Act contain any reference to the problem of statelessness for children born abroad. The congressional hearings concerning the 1952 Act are similarly silent about statelessness as a driving concern.
Moreover, even if it had been the government's concern, gender-neutral alternatives - - - which the court notes had been proposed as "far back as 1933" - - - would serve this purpose. Additionally, the ten year differential, which importantly cannot be cured since it attaches at the moment of birth, is substantial. Again, this time in a footnote (n.17), the court acknowledges that its decision differs from that of the Ninth Circuit.
The court then finds the paternity provision unconstitutional and rejects the government's proposed remedy that all derivative citizenship be subject to the longer ten year period.
Presumably, the government will seek certiorari. (And while this case involves a previous statute, the current statute maintains a gender differential). A petition would have a good chance of being granted given the split in the circuits. But the Court's 4-4 split in 2011 in Flores-Villar occurred because Justice Kagan was recused; this would not be the case this time. And perhaps the Obama Administration will chose not to seek review, although this seems unlikely.
Monday, June 15, 2015
In United States Supreme Court's fragmented and closely divided decision in Kerry v. Din, the majority rejected the procedural due process argument of a naturalized American citizen to an explanation of the reasons supporting a denial of a visa to her noncitizen husband. Justice Scalia, writing for the plurality and joined by Thomas and Chief Justice Roberts, concluded that she had no cognizable liberty interest attributable to her marriage. Justice Kennedy, joined by Alito, would not reach the liberty interest issue because the process here was all that was due. Justice Breyer, dissenting, and joined by Ginsburg, Sotomayor, and Kagan, would affirm the Ninth Circuit and find that she had a cognizable liberty interest and that more process was due in the form of a more precise and factual explanation.
So what might this mean for Obergefell? Most obviously, the dissenting opinion by Breyer, and joined by Ginsburg, Sotomayor, and Kagan, articulates an expansive liberty interest in marriage under the Due Process Clause that could be easily imported into Obergefell. On Justice Kennedy's concurrence, joined by Alito, the clear signal is that Justice Scalia's refusal to recognize a liberty interest in marriage is not one to which they are subscribing - - - in this case. Given that Justice Kennedy, as author of the Court's opinions Windsor, Lawrence, and Romer v. Evans, is being closely watched as potential author of an opinion in favor of Obergefell, there is nothing in Din that would mitigate that judgment. As for the plurality, Justice Scalia's derogation of substantive due process has a familiar ring that might be echoed in his opinion in Obergefell, with an emphasis on history. While Justice Thomas is widely expected to agree with Scalia's position, does the Chief Justice's joining of Scalia's opinion in Kerry v. Din signal a disapproval of recognizing any liberty interest in marriage? Perhaps. But perhaps not. Consider this:
Unlike the States in Loving v. Virginia, 388 U. S. 1 (1967), Zablocki v. Redhail, 434 U. S. 374 (1978), and Turner v. Safley, 482 U. S. 78 (1987), the Federal Government here has not attempted to forbid a marriage. Although Din and the dissent borrow language from those cases invoking a fundamental right to marriage, they both implicitly concede that no such right has been infringed in this case. Din relies on the “associational interests in marriage that necessarily are protected by the right to marry,” and that are “presuppose[d]” by later cases establishing a right to marital privacy.
Indeed, under this view, as the Court made clear in Zablocki, there must be a "direct and substantial" interference with marriage in order for there to be a liberty interest. The Court in Zablocki distinguished Califano v. Jobst, 434 U.S. 47 (1977) - - - which the Court in Din does not cite - - - which found no constitutional infirmity with altering social security benefits upon marriage. In short, the marriage was not "forbidden," it was simply subject to certain regulations in another the complex social security scheme, not unlike the complex immigration scheme.
So for those who might attempt to predict the various positions of the Justices in Obergefell based on Kerry v. Din, there is certainly much "play."
Wednesday, June 10, 2015
The Fifth Circuit has issued its opinion in Whole Woman's Health v. Cole, as the latest in the continuing saga regarding the constitutionality of HB 2.
Recall that a divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.
This opinion dissolves the district judge's opinion except as to one clinic in McAllen, Texas, holding that HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements did not impose an "undue burden" on women seeking abortions as a facial matter (and relying in part on Planned Parenthood of Texas Surgical Providers v. Abbott as a basis for res judicata). As applied, the court distinguished McAllen from El Paso, which has another abortion clinic nearby, albeit across the Texas state border in New Mexico.
It is unlikely this latest opinion will be an end to the litigation regarding HB2.
Thursday, April 16, 2015
The United States Supreme Court is set to hear oral arguments on April 28 in the same-sex marriage cases, now styled as Obergefell v. Hodges, a consolidated appeal from the Sixth Circuit’s decision in DeBoer v. Snyder, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee that had held the same-sex marriage bans unconstitutional, and creating a circuit split.
Recall that the Court certified two questions:
1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The case has attracted what seems to be a record number of amicus briefs. As we discussed last year, previous top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92. [Note that the "Obamacare" Affordable Care Act cases including 2012's consolidated cases of NFIB v. Sebelius attracted 136 amicus briefs.]
The count for Obergefell v. Hodges stands at 139. 147 [updated: 17 April 2015] 149 [updated] LINKS TO ALL THE BRIEFS ARE AVAILABLE ON THE ABA WEBSITE HERE.
76 77 amicus briefs support the Petitioners, who contend that same-sex marriage bans are unconstitutional.
58 66 67 amicus briefs support the Respondents, who contend that same-sex marriage bans are constitutional.
05 amicus briefs support neither party (but as described below, generally support Respondents).
According to the Rules of the Supreme Court of the United States, Rule 37, an amicus curiae brief’s purpose is to bring to the attention of the Court “relevant matter not already brought to its attention by the parties.” While such a brief “may be of considerable help to the Court,” an “amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”
An impressive number of the Amicus Briefs are authored or signed by law professors. Other Amici include academics in other fields, academic institutions or programs, governmental entities or persons, organizations, and individuals, often in combination. Some of these have been previously involved in same-sex marriage or sexuality issues and others less obviously so, with a number being religious organizations. Several of these briefs have been profiled in the press; all are linked on the Supreme Court’s website and on SCOTUSBlog.
Here is a quick - - - if lengthy - - - summary of the Amici and their arguments, organized by party being supported and within that, by identity of Amici, beginning with briefs having substantial law professor involvement, then government parties or persons, then non-legal academics, followed by organizations including religious groups, and finally by those offering individual perspectives. [Late additions appear below]Special thanks to City University of New York (CUNY) School of Law Class of 2016 students, Aliya Shain & AnnaJames Wipfler, for excellent research.
April 16, 2015 in Courts and Judging, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Foreign Affairs, Fourteenth Amendment, Free Exercise Clause, Full Faith and Credit Clause, Fundamental Rights, Gender, History, Interpretation, Privacy, Profiles in Con Law Teaching, Race, Recent Cases, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US), Theory | Permalink | Comments (3)
Monday, March 2, 2015
Senior United States District Judge Joseph Bataillon has enjoined Nebraska's same-sex marriage ban in its state constitution and found it violates the Fourteenth Amendment in his Memorandum and Order today in Waters v. Ricketts.
Recall that the United States Supreme Court will be hearing the issue this Term, having granted certiorari to the Sixth Circuit's divided opinion in the consolidated cases of DeBoer v. Snyder. The Court previously denied certiorari to opinions from the Fourth, Seventh, and Tenth Circuits all finding that same-sex marriage bans were unconstitutional, and the Ninth Circuit has ruled similarly. The Eighth Circuit, in which Nebraska is located, has not issued a definitive opinion on the constitutionality of same-sex marriage.
Judge Joseph Bataillon's ruling sounds in both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. He finds that marriage is a "fundamental liberty" and that the same-sex marriage ban is a facial classification based on gender. He also finds that Nebraska's state interests, including opposite sex parenting and protecting tradition, are insufficient. Throughout his analysis, he relies heavily on the Seventh Circuit's opinion in Baskin and the Ninth Circuit's opinion in Latta.
Interestingly, Judge Bataillon offers a prediction of the Court's conclusion:
The court finds the plaintiffs have demonstrated they will likely prevail on the merits of their claim. The court is persuaded that the Supreme Court will ultimately endorse, for one reason or another, the results obtained in the Fourth, Seventh, Ninth and Tenth Circuit challenges to same sex marriage bans.
Judge Bataillon supports this statement with an interesting footnote :
This conclusion is supported by the Supreme Court's recent denial of a stay of an Alabama district court decision invalidating a same-sex marriage ban. See Strange v. Searcy, 2015 WL 505563 (U.S. Feb. 9, 2015) (denying of application for stay of an injunction preventing Attorney General of Alabama from enforcing Alabama laws as defining marriage as a legal union of one man and one woman) (Justice Thomas noting in dissent that the failure to stay the injunction “may well be seen as a signal of the Court's intended resolution [of the constitutional question it left open in Windsor]."); see also Armstrong v. Brenner, No. 14A650, 2014 WL 7210190 (U.S. Dec. 19, 2014) (denying stay of preliminary injunction barring enforcement of Florida’s marriage exclusion); Wilson v. Condon, 14A533, 2014 WL 6474220 (U.S. Nov. 20, 2014) (denying stay of judgment finding South Carolina’s marriage exclusion laws unconstitutional); Moser v. Marie, 14A503, 2014 WL 5847590 (U.S. Nov. 12, 2014) (denying stay of preliminary injunction preventing enforcement of Kansas’ marriage exclusion); Parnell v. Hamby, No 14A413, 2014 WL 5311581 (U.S. Oct. 17, 2014) (denying stay of district court decision declaring Alaska’s marriage exclusion unconstitutional); Otter v. Latta, No. 14A374, 2014 WL 5094190 (U.S. Oct. 10, 2014) (denying application for stay of Ninth Circuit’s judgment finding Idaho’s marriage exclusion laws unconstitutional)
Also, the Supreme Court itself has telegraphed its leanings. See Lawrence [v. Texas] 539 U.S. at 605 (Scalia, J., dissenting) (stating that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage); see also United States v. Windsor, 133 S. Ct. 2675, 2709 (2013) (Scalia, J., dissenting) (essentially stating that the majority opinion in Windsor makes a finding of unconstitutionality regarding state same-sex marriage bans "inevitable.")
The use of Scalia's dissenting opinions is yet another example of the Scalia's "petard" phenomenon.
Also interesting is Judge Bataillon's rejection of injury to Nebraska should there be a preliminary injunction:
All but one of the plaintiff couples are married in a state that recognizes same-sex marriage. All of the couples have been in committed relationships for many years. Those that have resided in Nebraska have not caused damage to society at large or to the institution of marriage.
The preliminary injunction is effective March 9, at 8:00 am. Nebraska is reportedly appealing and seeking an emergency stay.
March 2, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Gender, Interpretation, Opinion Analysis, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Saturday, January 10, 2015
The Ninth Circuit, over a dissent of three judges, has denied the petitions for en banc review of Latta v. Otter (and Sevick v. Sandoval) in which a panel held that the same-sex marriage bans in Idaho and Nevada respectively are unconstitutional.
Recall that the unanimous panel opinion authored by Judge Reinhardt held that the Idaho and Nevada laws regarding same-sex marriage "violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard" of SmithKline Beecham Corp. v. Abbott Labs.
The Ninth Circuit's panel opinion was rendered one day after the United States Supreme Court denied certiorari to the petitions in the Fourth, Seventh, and Tenth Circuit cases with similar holdings. However, since then, the Sixth Circuit rendered a divided panel decision in DeBoer v. Snyder reversing lower courts and upholding the same-sex marriage bans in in Kentucky, Michigan, Ohio, and Tennessee.
Judge O'Scannlain's dissent from the denial of en banc review - - - joined by Judges Rawlinson and Bea - - - relies in part on the Sixth Circuit's opinion in DeBoer v. Snyder and the circuit split it created. Like the Sixth Circuit, O'Scannlain argues that the operative precedent is Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question." And like the Sixth Circuit, the dissent distinguishes Windsor v. United States as limited to the federal government.
The major argument of the dissent, however, is that the question of same-sex marriage is not only one for the states, it is decidedly not one for the federal courts interpreting the constitution: "Nothing about the issue of same-sex marriage exempts it from the general principle that it is the right of the people to decide for themselves important issues of social policy."
This judicial restraint v. judicial activism debate is well-worn territory. And like other judges, O'Scannlain is not a consistent adherent to one side or the other: Recall his dissent from en banc review in Pickup v. Brown, in which the panel upheld a California statute banning sexual conversion therapy against a constitutional challenge. But O'Scannlain does interestingly write:
As Justice Kennedy wrote in Schuette, ‘‘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 . . . . 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.”
Thus, O'Scannlain implicitly points to Kennedy's inconsistency regarding the desirability of resort to democratic processes and judicial restraint in the affirmative action case of Schuette as compared to his opinion in Romer v. Evans (on Colorado's Amendment 2), as well as Windsor and Lawrence v. Texas, and presumably Kennedy's opinion should the same-sex controversy reach the United States Supreme Court.
The Court itself is currently entertaining several petitions for certiorari on the same-sex marriage issue, including the Sixth Circuit opinion.
Meanwhile, the Fifth Circuit heard oral arguments (January 9) on appeals in Robicheaux v. Caldwell (in which a federal judge upheld Louisiana's same-sex marriage ban); DeLeon v. Perry (preliminary injunction against Texas' same-sex marriage ban as unconstitutional); and Campaign for Southern Equality v. Bryant, (preliminary injunction against Mississippi's same-sex marriage ban as unconstitutional). The oral arguments are available on the Fifth Circuit's website.
January 10, 2015 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Sexual Orientation, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Monday, December 22, 2014
Fourth Circuit Finds North Carolina's Anti-Abortion "Right to Know" Statute Violates First Amendment
In the unanimous panel opinion today in Stuart v. Camnitz, authored by Judge J. Harvie Wilkinson, the court agreed with the district judge that North Carolina's "Woman's Right to Know Act" violates the First Amendment. The Act required a physician "to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions."
The Fourth Circuit ruled that the statute is
quintessential compelled speech. It forces physicians to say things they otherwise would not say. Moreover, the statement compelled here is ideological; it conveys a particular opinion. The state freely admits that the purpose and anticipated effect of the Display of Real-Time View Requirement is to convince women seeking abortions to change their minds or reassess their decisions.
The court rejected the state's contention that the statute was merely a regulation of professional speech that should be subject to the low standard of rational basis review. Instead, the court reasoned that because the statute was a content-based regulation of speech, it should be evaluated under an intermediate scrutiny standard akin to that of commercial speech.
Importantly, the court also acknowledged its specific disagreement with the Eighth Circuit's en banc opinion in Planned Parenthood v. Rounds (2012) and the Fifth Circuit's opinion in Tex. Med. Providers Performing Abortion Servs. v. Lakey (5th Cir. 2012). The Fourth Circuit states that its sister circuits were incorrect to reply on a single paragraph in Planned Parenthood of Southeastern Pa. v. Casey, and "read too much into Casey and Gonzales [v. Carhart]," neither of which, the court points out, were First Amendment cases.
As the court stated,
In sum, though the State would have us view this provision as simply a reasonable regulation of the medical profession, these requirements look nothing like traditional informed consent, or even the versions provided for in Casey and in N.C. Gen. Stat. § 90-21.82. As such, they impose an extraordinary burden on expressive rights. The three elements discussed so far -- requiring the physician to speak to a patient who is not listening, rendering the physician the mouthpiece of the state’s message, and omitting a therapeutic privilege to protect the health of the patient -- markedly depart from standard medical practice.
Abortion may well be a special case because of the undeniable gravity of all that is involved, but it cannot be so special a case that all other professional rights and medical norms go out the window. While the state itself may promote through various means childbirth over abortion, it may not coerce doctors into voicing that message on behalf of the state in the particular manner and setting attempted here.
Most likely North Carolina will seek en banc review or petition for certiorari based on the conflicting opinions in the Fifth and Eighth Circuits.
UPDATE: On June 15, 2015, the United States Supreme Court's Order denied certiorari in the case now styled Walker-McGill v. Stuart, with a notation "justice Scalia dissents," but with no accompanying opinion.
Thursday, November 20, 2014
November 20, as President Obama acknowledged again this year, is "Transgender Day of Remembrance." While the commemoration often focuses on violence against trans* people, it also provokes consideration of legal remedies to end discrimination.
In her article posted on ssrn, From Jack to Jill: Gender Expression as Protected Speech in the Modern Schoolhouse, Professor Danielle Weatherby (pictured) takes up the issue of differential treatment in schools. Weatherby argues that the First Amendment has an important role to play in protecting gender expression:
With the majority of states and municipalities having enacted strong anti-bullying and anti-discrimination laws, and the judiciary on the cusp of deciding “the great bathroom debate,” the impetus toward carving out new protections for transgender students is finally underway. Nonetheless, litigants on both sides of the debate are left confused, with little practical guidance directing their conduct.
Some litigants have advanced the innovative “gender expression as protected speech” argument in limited circumstances, such as challenges to a school’s decree that a transgender girl student could not wear female apparel and accessories; an employer’s refusal to allow a female employee, who was required to wear a pants uniform at work, wear a skirt; and even an employer’s policy requiring a transgender woman to use the men’s restroom until she proved through documentation that she had undergone sexual reassignment surgery. Yet, no transgender student has advanced the argument that her use of the girls’ restroom, like her feminine dress, feminine preferences, and feminine mannerisms, constitutes symbolic expression deserving of protection under the First Amendment.
[manuscript at 50; footnotes omitted].
An individual’s conduct in using a restroom designated as either “male” or “female” or “man” or “women” expresses that individual’s belief that she belongs in that designated category of persons. By choosing to enter a facility labeled for a specific gender group, that individual is effectively stating her association with that gender. Although no words may ever be uttered, there is a strong mental association between the designation affixed to a restroom door and the fact that only those individuals identifying with that designation would enter and use that facility. Therefore, since a transgender student’s selection of a particular restroom is “sufficiently imbued with elements of communication,” the conduct is expressive and sends a particularized message about the student’s gender identity.
[manuscript at 55].
Weatherby cautions that schools should not yield to the "heckler's veto" and should protect the First Amendment rights of trans* students to expression. Ultimately, her argument is that such protection will eradicate the resort to violence.
Friday, November 7, 2014
A day after the Sixth Circuit's divided decision upholding same-sex marriage bans in several states, and thus creating a circuit split (with the Supreme Court having denied certiorari to the Seventh, Tenth, and Fourth Circuit opinions holding to the contrary), United States District Judge Ortrie D. Smith of Missouri (and in the Eighth Circuit) has rendered an opinion in Lawson v. Kelly, finding Missouri's same-sex marriage ban unconstitutional.
Judge Smith's 18 page opinion agrees with the Sixth Circuit majority in one respect: The Supreme Court's opinion in Windsor v. United States holding DOMA unconstitutional is not dispositive. However, Judge Smith also states that the Court's 1972 dismissal in Baker v. Nelson is not dispositive.
Judge Smith holds that under Eighth Circuit precedent, sexual orientation "is not a suspect class and that classifications based on sexual orientation are not subject to heightened review of any kind." On that basis, he grants judgments on the pleadings to the defendants.
However, Judge Smith holds that the same-sex marriage bans are unconstitutional under the Fourteenth Amendment. First, Judge Smith concludes that marriage is a fundamental right under the Due Process Clause, even as he notes that not all regulations of marriage are subject to strict scrutiny. Following Zablocki v. Redhail, however, he applies the "interfere directly and substantially with the right to marry" standard and concludes that the "prohibition must be examined with strict scrutiny, and viewed in that light the restriction fails to satisfy the Due Process Clause’s dictates."
Additionally, Judge Smith analyzes the same-sex marriage ban under the Equal Protection Clause as a classification based on gender:
The restriction on same-sex marriage is a classification based on gender. The State’s “permission to marry” depends on the gender of the would-be participants. The State would permit Jack and Jill to be married but not Jack and John. Why? Because in the latter example, the person Jack wishes to marry is male. The State’s permission to marry depends on the genders of the participants, so the restriction is a gender-based classification.
As Judge Smith avers, "Restrictions based on gender are subject to intermediate scrutiny." He finds the standard is not satisfied:
The State has not carried its burden. Its sole justification for the restriction is the need to create rules that are predictable, consistent, and can be uniformly applied. Assuming this is a valid justification for a restriction, there is no suggestion as to why the gender-based classification is substantially related to that objective. A rule that ignores gender would be just as related to that objective and be just as easy to apply (and arguably would impose less of a burden on the Recorders of Deeds because they would not have to conduct any gender-based inquiry whatsoever). Regardless, administrative convenience is not a valid reason to differentiate between men and women.
Judge Smith therefore concluded that "section 451.022 of the Revised Missouri Statutes and Article I, section 33 of the Missouri Constitution, and any other provision of state law that precludes people from marrying solely because they are of the same gender violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment" and enjoined state officials from declining to issue same-sex marriage licenses although the Judge stayed the "effects of the judgment" until the judgment is final.
November 7, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Wednesday, October 15, 2014
The controversial Texas law limiting abortion access known as HB 2, which began law despite a well-publicized filibuster by state senator Wendy Davis, is now effectively enjoined - - - in part - - -by the United States Supreme Court in its Order in Whole Woman's Health Center v. Lakey.
Here's the entire text:
The application to vacate stay of final judgment pending appeal presented to Justice Scalia and by him referred to the court is granted in part and denied in part. The Court of Appeals’ stay order with reference to the district court’s order enjoining the admitting-privileges requirement as applied to the McAllen and El Paso clinics is vacated. The Court of Appeals’ stay order with reference to the district court’s order enjoining the ambulatory surgical center requirement is vacated. The application is denied in all other respects.
Justice Scalia, Justice Thomas, and Justice Alito would deny the application in its entirety.
To recap: the United States Supreme Court is vacating the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.Recall also that this is an as-applied challenge. A panel of the Fifth Circuit in March upheld the admitting privileges provision after it had issued a stay of Judge Yeakel's decision enjoining the provision as unconstitutional.
Tuesday, October 7, 2014
In today's oral argument in Holt (Muhammad) v. Hobbs, the Court considered the question on which it granted certiorari: whether the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one—half—inch beard in accordance with his religious beliefs.
ConLawProf's own Steven Schwinn has penned a terrific preview for the ABA. The case occurs under the RLUIPA statute, of course, rather than the First Amendment, because RLUIPA provides greater protections as we previously explained, in the same manner that the RFRA statute at issue in last Term's Burwell v. Hobby Lobby Stores, Inc.
As I argue over in The Guardian, the issue of grooming raises larger issues, which the Justices mostly skirted, but the Justices clearly struggled with the argument that Arkansas had a compelling governmental interest served by prohibiting short beards. This discussion was marked by the vast majority of other states that allow prisoners to have beards (40) and the fact that Arkansas allows a medical exemption. Counsel for the Arkansas Department of Corrections explained that Arkansas had a different system of incarceration than other states (preferring barracks) and had an interesting doctrinal explanation for accommodating the medical condition but not the religious one:
The doctor's prescriptions invariably are get a clipper shave. And that brings a second point up, Your Honor, is that the policy's rationale was follow doctor's orders. And we think that is fundamentally of a different nature than a religious reason, because the Eighth Amendment law of deliberate indifference and the like admits a no countervailing security interest that come into play. Our policy is we follow doctor's orders and that's the end of the matter.
There was some discussion of the slippery slope variety, with Justice Kagan asking:
So whether it's a full beard or whether it's long hair or whether it's a turban, there will be some ability to say, even though it's just teeny tiny, there is some increase in prison security that results from disallowing this practice. And I guess I want to know, and this really fits in with several of the other questions that have been asked here, is how do we think about that question in the context of this statute?
Or as Chief Justice Roberts stated it:
But I mean, you're really just making your case too easy. I mean, one of the difficult issues in a case like this is where to draw the line. And you just say, well, we want to draw the line at half inch because that lets us win.
And the next day someone's going to be here with one inch. And maybe it'll be you. And then, you know, two inches.
It seems to me you can't avoid the legal difficulty just by saying, all we want is half an inch.
As ConLawProf Douglas Laycock appointed to argue on behalf of Holt/Muhammad, noted, Holt/Muhammad
made a pro se decision to limit his request. The Court expressly limited the question presented. So this case is only about half an inch.
That Holt/Mohammad's case is before the Court is one of statistical improbability. Kali Borkoski over at SCOTUSBlog has a terrific audio slideshow that demonstrates some of the difficulties of litigating RLUIPA claims. In Holt/Muhammad, the petition for certiorari was pro se from a negative Eighth Circuit decision; the vast majority of the 20,000 or so pro se petitions filed in federal courts each year do not reach the appellate level. Interestingly, the Eighth Circuit specifically ruled that the dismissal of the case "does not count as a “strike” for purposes of 28 U.S.C. § 1915(g)" the Prison Litigation Reform Act which limits pro se prison petitions to "three strikes." Later in the Term in Coleman-Bey v. Tollefson, the Court will be considering a construction of the three strikes limit; but perhaps Holt/Muhammad points to a larger issue with the limitation.
The Ninth Circuit has issued its opinion in Latta v. Otter (and Sevick v. Sandoval) holding that the same-sex marriage bans in Idaho and Nevada respectively are unconstitutional.
This is not surprising given yesterday's denial of certiorari by the United States Supreme Court to the petitions in the Fourth, Seventh, and Tenth Circuit cases with similar holdings.
The unanimous opinion authored by Judge Reinhardt held that the Idaho and Nevada laws regarding same-sex marriage "violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard" of SmithKline Beecham Corp. v. Abbott Labs.
The court rejected the argument that the same-sex banning marriage laws survive heightened scrutiny because they promote child welfare by encouraging optimal parenting. In part, the court found that the means chosen to accomplish this goal was underinclusive:
If defendants really wished to ensure that as many children as possible had married parents, they would do well to rescind the right to no-fault divorce, or to divorce altogether. Neither has done so. Such reforms might face constitutional difficulties of their own, but they would at least further the states’ asserted interest in solidifying marriage. Likewise, if Idaho and Nevada want to increase the percentage of children being raised by their two biological parents, they might do better to ban assisted reproduction using donor sperm or eggs, gestational surrogacy, and adoption, by both opposite-sex and same-sex couples, as well as by single people. Neither state does.
The court found that the other interests were likewise inadequate to support the ban on same-sex marriage. In approximately 30 pages, the court affirmed the district court in Latta and reversed the district court in Sevcik.
Interestingly, there are two separate concurring opinions. Judge Reinhardt wrote a separate concurring opinion (to his own opinion), adding a fundamental rights analysis: "laws abridging fundamental rights are subject to strict scrutiny, and are invalid unless there is a “compelling state interest” which they are “narrowly tailored” to serve. Unsurprisingly, he found the same-sex statutes did not survive under this more rigorous standard.
Judge Berzon's separate concurring opinion added yet another justification for the ruling: the same-sex marriage bans are classifications on the basis of gender that do not survive the level of scrutiny applicable to such classifications.
Monday, October 6, 2014
In its Order today, the Court denied certiorari to a raft of cases, including the cases seeking review of opinions in which appellate courts found bans on same-sex marriage to be unconstitutional.
These cases are from three circuits:
From the Seventh Circuit: Bogan v. Baskin and Walker v. Wolf, decided in September, regarding the same-sex marriage bans in Indiana and Wisconsin;
From the Fourth Circuit's Bostic v. Rainey, regarding Virginia's prohibition there were three petitions, McQuigg v. Bostic, Schaefer v. Bostic, and Rainey v. Bostic. The Fourth Circuit has already issued a Mandate, lifting the stay.
Wednesday, September 17, 2014
This year's MacArthur Fellowships included some well known advocates for social justices whose work involves constitutional law.
Mary Bonauto (pictured below) is one of the 21 people selected as a 2014 MacArthur Fellow for her work as a "civil rights lawyer."
Here's the beginning of the announcement:
Mary L. Bonauto is a civil rights lawyer whose powerful arguments and long-term legal strategies have led to historic strides in the effort to achieve marriage equality for same-sex couples across the United States. The Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD) since 1990, much of her early work focused on adoption and parenting, censorship, hate crimes, and discrimination in jobs and public accommodations.
More description as well as a video on the MacArthur site here.
LawProf Sarah Deer (pictured below) is another of the 21 recepients.
Here's the beginning of the announcement:
Sarah Deer is a legal scholar and advocate leveraging her deep understanding of tribal and federal law to develop policies and legislation that empower tribal nations to protect Native American women from the pervasive and intractable problem of sexual and domestic violence.
More description as well as a video on the MacArthur site here.
Thursday, September 4, 2014
The Seventh Circuit heard oral arguments in Baskin v. Bogan and Wolf v. Walker just last week. Today, the court issued its unanimous opinion affirming the district court findings that the same-sex marriage bans in Indiana and Wisconsin are unconstitutional.
The Seventh Circuit panel enjoined the states from enforcing the laws and did not issue a stay.
Judge Richard Posner (pictured right) who is perhaps the most well-known judge not on the United States Supreme Court and who attracted attention with his comments at the oral argument, perhaps not surprisingly wrote the 40 page opinion.
Indiana and Wisconsin are among the shrinking majority of states that do not recognize the validity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are lawful.
The panel's decision is based entirely on equal protection doctrine under the Fourteenth Amendment. Here's Judge Posner introducing the concept that
comes wrapped, in many of the decisions applying it, in a formidable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest. We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage.
However, Judge Posner's analysis draws heavily on his work in law and economics, implying that cost-benefit analysis deserves more attention that the "conventional approach" - - - which "doesn’t purport to balance the costs and benefits of the challenged discriminatory law" - - - gives it. For Posner:
Our pair of cases is rich in detail but ultimately straight- forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.
Judges Williams and Hamilton apparently agreed.
If the cases go en banc or to the Supreme Court, it will be interesting to see if any of the law and economics rationales are prominent.
Wednesday, September 3, 2014
Breaking the spate of federal decisions that have invalidated state same-sex marriage prohibitions, federal district judge Martin Feldman of the Eastern District of Louisiana today upheld the constitutionality of that state's ban in his 32 page opinion in Robicheaux v. Caldwell.
Judge Feldman rejects the equal protection claim (the "most hefty constitutional issue") and the due process claim, as well as rejecting any heightened scrutiny within those claims and any extension of Windsor to state same-sex marriage bans. In applying rational basis, the judge found that the "central state interest of linking children to an intact family formed by their biological parents" and of "even more consequence," the "legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through democratic consensus," was sufficient.
The theoretical underpinnings of the judge's rationale are a preference for states' rights, democratically enacted provisions, tradition, and a judicial practice of being "circumspect."
Judge Feldman's opinion credits notions of formal equality and the slippery slope. For example, in rejecting the analogy to Loving v. Virginia, Judge Feldman writes: "no analogy can defeat the plain reality that Louisiana's laws apply evenhandedly to both genders--whether between two men or two women." This evenhandedness was precisely the argument Virginia unsuccessfully advanced in Loving when it argued that under its miscengenation statute, both whites and blacks would be prosecuted. At another point, Judge Feldman states:
Perhaps in a new established point of view, marriage will be reduced to contract law, and, by contract, anyone will be able to claim marriage. Perhaps that is the next frontier, the next phase of some "evolving understanding of equality," where what is marriage will be explored. And as plaintiffs vigorously remind, there have been embattled times when the federal judiciary properly inserted itself to correct a wrong in our society. But that is an incomplete answer to today's social issue. When a federal court is obliged to confront a constitutional struggle over what is marriage, a singularly pivotal issue, the consequence of outcomes, intended or otherwise, seems an equally compelling part of the equation. It seems unjust to ignore. And so, inconvenient questions persist. For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minors marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs.
Judge Feldman acknowledged that his decision departed from the recent trend, but quoted from the dissenting opinion in the Fourth Circuit's decision in Bostic v. Schaefer.
As Judge Feldman also stated:
Clearly, many other courts will have an opportunity to take up the issue of same-sex marriage; courts of appeals and, at some point, the U.S. Supreme Court. The decision of this Court is but one studied decision among many. Our Fifth Circuit has not yet spoken.
Whether or not the case is appealed to the Fifth Circuit, the issue seems sure to be heard by the United States Supreme Court.
September 3, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)
Tuesday, September 2, 2014
Now that classes have begun, it's a good time for lawprofs to think about how we teach and interact with our students.
Published in the on-line "Footnote Forum" of City University of New York's law review, Professor Gabriel Arkles(pictured) has some very specific things to say about the trans* and gender non-comforming students in our classes. In his essay, Improving Law School for Trans* and Gender Nonconforming Students: Suggestions for Faculty, Arkles provides details of practices that "need improvement" and often specific suggestions for change. Here's one of special note for ConLawProfs:
Practice in need of change: In discussing Equal Protection doctrine, a constitutional law professor says, “But is sex really an immutable characteristic? Don’t some people get ‘sex changes’?” The class laughs, and the professor moves on.
This comment makes trans* people into the butt of a joke, assumes that no trans* people are in the room, gives no substantive attention to trans* issues in constitutional law, and plays into myths about trans* healthcare.
Arkles' essay is a thought-provoking and must-read this semester.
Monday, September 1, 2014
The latest installment in the continuing saga of HB 2, Texas' restrictive abortion law, occurred late Friday with Judge Lee Yeakel enjoining the admitting privileges requirement and the ambultory-surgical-center requirement in his 21 page opinion in Whole Woman's Health Center v. Lakey.
Recall that a panel of the Fifth Circuit in March upheld the admitting privileges provision of controversial Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis, after it had issued a stay of Judge Yeakel's decision enjoining the provision as unconstitutional.
This new opinion considers the as-applied challenge to the admitting privileges provision combined with the the ambultory-surgical-center requirement.
In considering the testimony and evidence in the bench trial, Judge Yeakel found that the "experts’ testimony substantially contradicted each other and, predictably, reached opposing conclusions," noting that this is "the nature of expert testimony." But the judge did use some of that testimony, as well as carefully considering the parties' stipulations.
The court concludes that the act’s ambulatory-surgical—center requirement, combined with the already in-effect admitting-privileges requirement, creates a brutally effective system of abortion regulation that reduces access to abortion clinics thereby creating a statewide burden for substantial numbers of Texas women. The obstacles erected for these women are more significant than the “incidental effect of making it more difficult or more expensive to procure an abortion.” [citing Casey]. The court concludes that the overall lack of practical access to abortion services resulting from clinic closures throughout Texas as a result of House Bill 2 is compelling evidence of a substantial obstacle erected by the act.
The judge also concluded "that the severity of the burden imposed by both requirements is not balanced by the weight of the interests underlying them." And, perhaps most interestingly, the judge explicitly considered the legislative intent of HB2:
An abortion regulation is also violative of a woman’s right to an abortion if it was adopted with the purpose of erecting a substantial obstacle to a woman’s ability to choose a previability abortion. [citing Gonzales v Carhart]. Because the act’s two requirements have the effect of creating an undue burden, an additional ﬁnding that the act was passed with the purpose of erecting a substantial obstacle is not required in order to declare the act unconstitutional. However, the court concludes, after examining the act and the context in which it operates, that the ambulatory-surgical- center requirement was intended to close existing licensed abortion clinics. The requirement’s implementing rules speciﬁcally deny grandfathering or the granting of waivers to previously licensed abortion providers. This is in contrast to the “frequent” granting of some sort of variance from the standards which occur in the licensing of nearly three-quarters of all licensed ambulatory surgical centers in Texas. Such disparate and arbitrary treatment, at a minimum, suggests that it was the intent of the State to reduce the number of providers licensed to perform abortions, thus creating a substantial obstacle for a woman seeking to access an abortion. This is particularly apparent in light of the dearth of credible evidence supporting the proposition that abortions performed in ambulatory surgical centers have better patient health outcomes compared to clinics licensed under the previous regime.
Thus, the judge enjoined the enforcement of HB2.
The Attorney General of Texas is sure to appeal.
Thursday, August 21, 2014
In his 33 page opinion today in Brenner v. Scott, Judge Robert Hinkle of the Northern District of Florida found that Florida's same-sex marriage bans in the constitution as Article I §27 and Florida Statutes § 741.04(1) violated the Fourteenth Amendment.
Judge Hinkle first determined that the "right asserted by the plaintiffs is a fundamental right as that term is used in due-process and equal-protection jurisprudence," noting that almost every court that has addressed the issue since the Supreme Court’s 2013 decision in Windsor has said the answer is yes, and concluded that that "view is correct." Given that there is a fundamental right, he continued:
That leaves for analysis the second step, the application of strict scrutiny. A state may override a fundamental right through measures that are narrowly tailored to serve a compelling state interest. A variety of justifications for banning same- sex marriages have been proffered by these defendants and in the many other cases that have plowed this ground since Windsor. The proffered justifications have all been uniformly found insufficient. Indeed, the states’ asserted interests would fail even intermediate scrutiny, and many courts have said they would fail rational- basis review as well. On these issues the circuit decisions in Bostic, Bishop, and Kitchen are particularly persuasive. All that has been said there is not repeated here.
Judge Hinkle did take the opportunity, however, to specifically discuss the procreation argument, finding that "Florida has never conditioned marriage on the desire or capacity to procreate."
Like other judges, Judge Hinkle used Justice Scalia's dissenting language from Lawrence v. Texas to note that moral disapproval in the marriage context is the same as moral disapproval in the sodomy context.
Judge Hinkle's opinion then analyzed the requirements for a preliminary injunction, finding them satisfied. But he also held that a stay was warranted; it would have been difficult to rule otherwise in light of the previous stays, including the one just yesterday by the United States Supreme Court.
August 21, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)