Tuesday, March 26, 2013

Hollingsworth v. Perry, California's Prop 8 Case Oral Arguments in the United States Supreme Court

The first of the two closely-watched same sex marriage cases to be argued before the United States this morning prompted much tweeting and predictions, as well as the promised early release of the audio by the Supreme Court itself.

Supreme_Court_of_the_United_StatesAudio here:

 

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As the oral arguments today made clear, at issue before the Court today in Hollingsworth v. Perry is the constitutionality of California's Proposition 8, held unconstitutional by a divided panel of the Ninth Circuit in Perry v. Brown.

 

 The Standing Issue:

The first question during oral argument was from Chief Justice Roberts and directed the attention of Hollingsworth's counsel, Charles Cooper, to the "jurisdictional" issue - - - the question of whether Hollingsworth has standing.  Recall that the original challenge to Proposition 8 named Governor Schwarzenegger, and later substituted Governor Brown, as defendants, but both governors and the State of California refused to defend the constitutionality of the voter initiative.  Recall also that the California Supreme Court had answered a certified query about the interests of proponents of a Proposition under California law, but today's the questions from the bench stressed Article III of the United States Constitution.

Roberts' query was repeated to Theodore Olsen, arguing for the challengers to Proposition 8, and to Solicitor General Verrilli, who noted that the United States, as amicus, did not have a "formal position" on standing, but essentially echoed Justice Ginsburg's first question to Cooper, regarding whether the proponents of Proposition 8 had any "propriety interest" in the law distinct from other California citizens once the law had been passed.

On the Merits:

A central query on the merits is the level of scrutiny under equal protection doctrine that should be applied.  Justice Kennedy asked Cooper whether it could be treated as a gender classification and stated "It's a difficult question that I've been trying to wrestle with it."  Yet Cooper's argument in many ways deflects the level of scrutiny inquiry and Justice Kagan expressed it thusly:

Mr. Cooper, could I just understand your argument. In reading the briefs, it seems as though your principal argument is that same-sex and opposite -- opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State's principal interest in marriage is in regulating procreation. Is that basically correct?

Mr. Cooper agreed, and continued his argument, although Justice Scalia later tried to assist him:

JUSTICE SCALIA: Mr. Cooper, let me -- let  me give you one -- one concrete thing. I don't know why  you don't mention some concrete things. If you redefine  marriage to include same-sex couples, you must -- you  must permit adoption by same-sex couples, and there's -­  there's considerable disagreement among -- among  sociologists as to what the consequences of raising a  child in a -- in a single-sex family, whether that is  harmful to the child or not. Some States do not -- do  not permit adoption by same-sex couples for that reason.  

JUSTICE GINSBURG: California -- no,  California does.  

JUSTICE SCALIA: I don't think we know the  answer to that. Do you know the answer to that, whether  it -- whether it harms or helps the child?

But given that Justice Kennedy is widely viewed as the "swing vote," his comments deserve special attention.  During Cooper's argument, Kennedy focused on the children of same-sex couples in California:

JUSTICE KENNEDY: I -- I think there's -­ there's substantial -- that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think? 

But at other times, Kennedy expressed other concerns.  During Theordore Olsen's argument, Kennedy stated

JUSTICE KENNEDY: The problem -- the problem  with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that  metaphor, there's a wonderful destination, it is a cliff. Whatever that was.

And soon thereafter, in perhaps what could be a possible avoidance of all the issues,

JUSTICE KENNEDY: But you're -- you're doing  so in a -- in a case where the opinion is very narrow.  Basically that once the State goes halfway, it has to go  all the way or 70 percent of the way, and you're doing  so in a case where there's a substantial question on -­ on standing. I just wonder if -- if the case was  properly granted. 

MR. OLSON: Oh, the case was certainly  properly granted, Your Honor. I mean, there was a full  trial of all of these issues. There was a 12-day trial,  the judge insisted on evidence on all of these  questions. This -- this is a -­ 

JUSTICE KENNEDY: But that's not the issue  the Ninth Circuit decided.   

Could the Supreme Court merely declare that its grant of certiorari was "improvidently granted."  It certainly wouldn't be the first time (or second) in very recent history.  But in such a high profile case, it might further erode respect for the Court.

RR

 

March 26, 2013 in Courts and Judging, Equal Protection, Family, Fourteenth Amendment, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 25, 2013

Daily Read: Not The Marrying Kind by Nicola Barker

9781137348036BarkerThe critique of marriage as a legal institution may seem a bit churlish as the same-sex marriage cases go to the United States Supreme Court this week.  It may seem as if there is universal agreement that marriage is "good" and the only question is whether governments can exclude same-sex couples from this "good."

Yet there is certainly a different way to conceptualize the issue.  In Not the Marrying Kind, U.K. Law Professor Nicola Barker engages the issues from several perspectives.  Importantly, her discussions do not portray the lesbian or larger LGBT communities as monolithically desiring marriage, but rather as critically engaged in questions of formal equality. She is scrupulous about presenting the complexities of opinions, theories, and strategies across several continents. Barker's book is a treat even readers who have been following these developments for years or are suffering from same-sex marriage fatigue.

I review Barker's book, as well as several other books on same-sex and opposite-sex marriage in an essay "Is Marriage Good for Women?" in this month's Women's Review of Books.

Barker's book is the best of the lot and essential reading for anyone seriously engaged in thinking about same-sex marriage.

RR

March 25, 2013 in Books, Comparative Constitutionalism, Current Affairs, Family, Gender, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, March 21, 2013

Daily Read: US v. Windsor, the DOMA Case, Amicus Brief Cato Institute and Constitutional Accountability Center

Fourth in a Series: Guest Post by Allison Reddy, City University of New York (CUNY) School of Law, class of 2014

CATOThe brief of amici curiae of Cato Institute and Constitutional Accountability Center supports the position of Edith Windsor and argues for affirming the Second Circuit opinion. The Cato Institute is a think tank dedicated to public policy research furthering “the principles of individual liberty, limited government, free markets and peace.”  The challenge to DOMA is consistent with CATO's philosophy of limited governmental interference in issues of personal freedom, especially on the Dtmcaclogopart of the federal government.  The Constitutional Accountability Center, also a think tank, is dedicated to "fulfilling the progressive promise of our Constitution’s text and history."  While the two organizations might differ on controversial cases such as Citizens United, here the organizations agree that DOMA should be held unconstitutional.

Interestingly, the brief does not use the umbrella argument technique and instead jumps right into  the arguments, first discussing the equal protection guarantee embodied in the Fifth Amendment. According to their argument, the Constitution protects individuals, not groups, from “lawless action by the government.” The amicus continues to quote Justice Kennedy’s concurring opinion in JEB v. Alabama, which focused on the fact that individuality rises above association with a particular class. Therefore, any law designed to make individuals inferior under the law because of membership in a class is inherently odious. The argument progresses to discuss the plain meaning of the equal protection clause, which requires “equality under the law and equality of rights for all persons.” Citing the Civil Rights Cases, Yick Wo, and Justice Harlan’s dissent in Plessy v. Ferguson, the brief makes a forceful case for the prohibition of class legislation. Framing DOMA as discrimination against gays and lesbians and denial of their right to “ordinary civic life in a free society” (Romer), the principles and case law undergirding equal protection require that DOMA be overturned.

The brief discusses the history of heightened scrutiny, both strict and intermediate. It supports the Second Circuit’s conclusion that intermediate scrutiny is appropriate. It argues, however, that the Court need not even reach a heightened scrutiny analysis, because DOMA fails even the most deferential rational basis review. However, without acknowledging the perhaps more “searching” scrutiny these cases apply, the brief uses Romer, Moreno, and Cleburne to support its conclusion. It does note that rational basis review, although deferential, “has never entailed judicial abdication in the face of arbitrary, invidious discrimination inconsistent with the equal protection guarantee,” citing Nat’l Fed’n of Independent Business v. Sebelius in support of this proposition. Accordingly, the Court should not abdicate its responsibility to protect gays and lesbians from DOMA’s discriminatory effects.

The brief further argues that because DOMA discriminates against gays in lesbians in almost every aspect of their lives, it violates the basic guarantee of equal protection under the law. DOMA was not a rational solution to a legitimate federal problem because it was obviously enacted in the spirit of animosity towards gays and lesbians, aiming to make them unequal to everyone else. Quoting the legislative history, the brief points out that “federal legislators sought to ‘express their disapprobation through the law,’ 142 Cong. Rec. 17,089 (1996), asserting that same-sex couples were ‘immoral, depraved,’ ‘unnatural,’ ‘based on perversion,’ and ‘an attack on God’s principles.’ Id. at 16,972, 17,074, 17, 082.” The brief goes on to eviscerate the rational bases proffered by BLAG in much the same manner as the Southern District, First Circuit, and Second Circuit.

This amicus brief reads much more forcefully than the Government’s brief. The way that this amicus brief essentially frames Romer, Cleburne, and Moreno as ordinary rational basis cases mirrors BLAG’s framing of those cases—except to support the opposite argument. At first blush, not acknowledging the more “searching” standard in these cases seemed glaring; however, this was obviously an intentional choice to construe these cases as minimally scrutinizing to support a finding that DOMA would fail even the most permissive review.

Moreover, by invoking the plain meaning of equal protection, this brief dispensed with the legal formalism. It argued that couching the arguments over DOMA in the language of federalism is a disingenuous approach to the issue and urges the Court reject BLAG's construction and confront DOMA in a forthright manner.

[posted and edited by RR]

March 21, 2013 in Current Affairs, Equal Protection, Family, Fifth Amendment, Gender, Sexual Orientation, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 20, 2013

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

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

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

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

The rational basis argument:

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

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

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

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

The moral and religious views argument:

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

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

Contribution of the Brief:

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

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

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

[posted and edited by RR]
[image via]

 

March 20, 2013 in Current Affairs, Equal Protection, Family, Fifth Amendment, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 18, 2013

Daily Read: US v. Windsor, the DOMA Case, Amicus Brief of Senators Hatch et. al. in Support of BLAG

First in a Series: Guest Post by Meghan McLoughlin, City University of New York (CUNY) School of Law, class of 2014

Brief on the merits of the Amici Curiae United States Senators Orrin G. Hatch (pictured), Saxby Chambliss, Dan Coats, Thad Cochran, Mike Crapo, Charles Grassley, Lindsey Graham, Mitch McConnell, Richard Shelby, and Roger Wicker in support of respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives.   

399px-Orrin_Hatch,_official_portrait,_112th_CongressThe Amici were all sitting United States Senators who served in the 104th Congress House or Senate and voted for passage of the Defense of Marriage Act (“DOMA”). Their interest in writing this brief was to inform the Court of the important interests that DOMA was enacted to serve. Therefore, this brief does not explore the equal protection levels of scrutiny and their applicability to DOMA or discuss every interest in enacting DOMA, as the Bipartisan Legal Advisory Group (“BLAG”) did in their brief. Rather, the The Amici’s argument focuses on and expounds specifically federal interests that were considered and explained throughout DOMA’s legislative history, but which the Amici feel were ignored, misunderstood, or summarily dismissed in the courts below.

First, the Amici contend alongside BLAG that pre-DOMA law did not recognize same-sex marriage, and that DOMA merely reaffirmed the existing federal definition. Like BLAG, the brief cites to other federal statutes and benefits describing spouses as husband and wife, and explains that at the time federal benefit statutes were enacted, no state recognized same-sex marriages. Both briefs state that DOMA was a response to the Hawaii case, Baehr v. Lewin,  but  the Amici go as far to describe Congress’s view that Baehr was “part of an orchestrated legal assault being waged against traditional heterosexual marriage.” [Brief, pg. 2]

Second, the Amici echoed BLAG’s asserted interest of uniformity and certainty in the application of federal law. In addition to BLAG’s claim that a federal definition of marriage is necessary to ensure that couples in different states do not have different eligibility to receive Federal benefits, the Amici also explain that DOMA was enacted to avoid state by state and statute by statute litigation over whether a couple who had married in a state that recognized same-sex marriage would be “married” if they moved to another state. The outcome of this type of litigation would largely depend on whether a state had a strong public policy against same-sex marriage, which would vary state to state. DOMA was enacted to prevent this litigation, which would have varying and inconsistent results. The Amici further contend that there is nothing suspicious or novel about Congress preferring this uniformity over deference to state law – especially when Congress is confronted by an effort to change the definition of marriage contrary to history and tradition.

Third, similarly to BLAG, the Amici reject the argument that DOMA interferes with the autonomy of states to define marriage and claim that Section 3 of DOMA protects the ability of states to preserve traditional marriage. Like BLAG, the Amici reference Section 2 of DOMA as preserving and protecting the autonomy of each individual state. In addition, the Amici claim that Section 3 of DOMA preserves the traditional definition of marriage by removing the incentive that might otherwise encourage efforts to change state law to recognize same-sex marriage. The Amici state that if recognizing same-sex marriage would allow same-sex couples to obtain federal benefits, those seeking recognition by the courts would have a powerful weapon, especially in the cases of sympathetic plaintiffs.

Finally, the Amici devote the last section of their brief to the claim that support for traditional marriage is not unconstitutional animus. Although BLAG also contends that DOMA is not motivated by animus, the Amici specifically claim that the Court’s animus jurisprudence does not support invalidating an otherwise constitutional statute based on the subjective motivations of individual legislators. Thus, where, as here, there is sufficient legislative history to indicate the law is rationally related to some legitimate governmental interest, the law cannot be invalidated by the improper motives of some legislators. Moreover, the Amici argue, there is no basis to equate support for the traditional definition of marriage with unconstitutional animus. They contend it is not irrational or bigoted to oppose the redefinition of marriage that is unknown to history or tradition.

The Amici did not present any entirely new interests or arguments in support of DOMA, but rather further explained and detailed interests that have already been discussed in the BLAG brief and in the court decisions below. It was an opportunity for the Amici to present more rationales connecting the asserted interests to DOMA but did not necessarily help  in understanding BLAG’s arguments. In addition, the Amici characterized the potential for recognition of same-sex marriage as an orchestrated conspiracy to undermine their view of marriage, which may not have been appropriate for a party’s brief given its strong language.

[posted and edited by RR]


March 18, 2013 in Equal Protection, Family, Fifth Amendment, Gender, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Sunday, March 17, 2013

Weekly Read: US v. Windsor, the DOMA Case, Amicus Briefs

With the oral argument in United States v. Windsor testing the constitutionality of DOMA set for March 27 (the day after the related Prop 8 case, Hollingsworth v. Perry), the amicus briefs have been piling up (and one more, from General Edwin Meese III and John Ashcroft, will apparently be added). 

Recall that in United States v. Windsor, the constitutionality of DOMA is being argued by BLAG, the Bipartisan Legal Advisory Group of the U.S. House of Representatives, while Windsor (as well as the United States Government) argues that DOMA is unconstitutional.  This unusual configuration raises some standing issues, but the merits briefs focus on the constitutionality of DOMA under the equal protection component of the Fifth Amendment.

800px-Stack_of_Copy_PaperIn case you haven't had a chance to read each one of the amicus briefs, this week we highlight four briefs, in guest posts authored by CUNY School of Law students in Professor Andrea McArdle's "Judicial Writing Seminar."  The student authors will briefly outline the arguments and then discuss what, if anything, the particular amicus brief adds to the parties' briefs.

Here's the line-up:

Meghan McLoughlin discusses the brief of Senators Orrin G. Hatch et. al in support of respondent BLAG.

Anetta Sookhdeo discusses the brief of the Scholars of the Constitutional Rights of Children in support of Windsor.

Versely Rosales discusses the brief of the National Association of Evangelicals; The Ethics  & Religious Liberty Commission of the Southern Baptist Convention; The Church of Jesus Christ of Latter-Day Saints; The Lutheran Church-Missouri Synod; The Romanian-American Evangelical Alliance of North America; and Truth in Action Ministries in support of BLAG.

Allison Reddy discusses the brief of the CATO Institute and the Constitutional Accountability Center in support of Windsor.

RR
[image via]

 

March 17, 2013 in Equal Protection, Family, Fifth Amendment, Gender, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 11, 2013

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

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

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

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

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

RR

March 11, 2013 in Family, Fundamental Rights, Gender, Race, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, March 8, 2013

Daily Read: Obama Signs VAWA

Apropos of International Women's Day today, President Obama's signing of the reauthorization of the Violence Against Women Act (VAWA) yesterday is the daily read, including the official remarks and the video below. 

 

 

As the President's remarks reflect, the version of VAWA that passed Congress is notable because it includes protections for Native Americans (expanding tribal jurisdiction), for undocumented persons, and for persons in same-sex relationships.

And they are also notable for his shout-out to one of my former students, Sharon Stapel, for her work.

RR
[video via]

March 8, 2013 in Congressional Authority, Family, Fourteenth Amendment, Gender, Race | Permalink | Comments (0) | TrackBack (0)

Thursday, March 7, 2013

Idaho District Judge Holds Portions of State's Abortion Law Unconstitutional

In the latest chapter of McCormack v. Hiedeman, District Judge Lynn Winmill issued a 42 page opinion (Memorandum Decision and Order) yesterday holding various provisions in Idaho's abortion law unconstitutional, including the 20 week pregnancy ban unconstitutional.

Agrippine_de_Claude_MellanRecall that the Ninth Circuit last year found that Idaho's prosecution of McCormack for "self-abortion" constituted an undue burden and was unconstitutional.  McCormack, who purchased abortion "medications" over the internet, was the subject of an excellent indepth article which we discussed here. At that time, it seemed as if the case was concluded.

However, Judge Winmill rejected the prosecutor's argument that the case was moot, noting that a party "cannot conjure up mootness by ceasing the challenged conduct only for practical or strategic reasons - - - such as avoiding litigation."  The judge further held that the prosecutor's promise not to prosecute would not bind his successors and that his subsequent offer of transactional immunity to McCormack was not timely or binding.  Further, the judge noted that pregnancy is "capable of repetition yet evading review."

Judge Winmill also held that the physician in the case had standing, including to assert his patients' constitutional claims.

On the merits, Judge Winmill held that the self-abortion provision is a substantial obstacle and therefore unconstitutional, adopting the Ninth Circuit's reasoning.

Judge Winmill also held unconstitutional the provisions imposing criminal liability on abortion providers who perform first trimester abortions outside a hospital or a properly staffed and equipped office or a clinic and requires that “physicians have made satisfactory arrangements” for emergency hospital care.  The judge accepted the physician's argument that the terms “properly” and “satisfactory” are unconstitutionally vague therefore placing an undue burden on women seeking first trimester abortions. There is some confusion in the judge's reliance on Gonzales v. Carhart in this passage, but the judge finds that the Idaho statute is not sufficiently specific.

Additionally, the judge found unconstitutional the Idaho provisions  banning abortions at twenty weeks in PUCPA, the Pain-Capable Unborn Child Protection Act.  He reasoned that PUCPA does not contain mention the health or safety of the pregnant woman, that its only purpose was to limit the available options for the woman, and that the legislature cannot place viability at a set point. 

Given this opinion, it is likely that McCormack v. Heidman will be returning to the Ninth Circuit.

RR
[image via]

March 7, 2013 in Abortion, Due Process (Substantive), Family, Fourteenth Amendment, Gender, Medical Decisions, Opinion Analysis, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 5, 2013

Daily Read: Former Justice O'Connor on the Rachel Maddow Show

Today's "read" is the video of former Justice O'Connor on "The Interview" segment of the Rachel Maddow Show.   It raises ethics issues in an interesting way as well as gender in the Court and Bush v. Gore as not very "special" although also "important." 

  It starts at 5.35 below:

 

Visit NBCNews.com for breaking news, world news, and news about the economy

 

 

Update: more O'Connor here. And here.

RR

March 5, 2013 in Gender, History, Interpretation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 4, 2013

Daily Read: Toobin on Justice Ginsberg in New Yorker

Jeffrey Toobin's profile of Justice Ginsburg, entitled The Heavyweight, is behind a paywall at The New Yorker, but news outlets are already reporting some material, including Justice Ginsburg's plan not to retire this year (or next).

459px-Ruth_Bader_Ginsburg,_SCOTUS_photo_portrait
Toobin characterizes Ginsburg as "reserved, noting that there "is some irony in Ginsburg’s reputation for reserve, because she is, by far, the current Court’s most accomplished litigator. Before Chief Justice John G. Roberts, Jr., became a judge, he argued more cases than Ginsburg did before the Justices, but most of them were disputes of modest significance."

Worth a read - - - especially for those who like celebrity legal profiles.

RR

March 4, 2013 in Courts and Judging, Current Affairs, Gender, History, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 26, 2013

The Struggle for Women's Inclusion on UK's Highest Court

Three new Justices have been appointed as Justices of the Supreme Court of the United Kingdom - - - and all of them are men.

Architecture_thebuilding
As the British Prime Minister's Office has announced, "The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom." 

As The Guardian reports, there was some speculation that these appointments were delayed by requests that the selection panel reconsider its choices to address the lack of gender diversity.  At present,  Lady Hale is the only woman Justice on the 12 person Court, a situation she has discussed.

RR

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf
The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope. - See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf
The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope. - See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf
The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope. - See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

February 26, 2013 in Comparative Constitutionalism, Gender | Permalink | Comments (0) | TrackBack (0)

Thursday, February 21, 2013

Daily Read: Deirdre Bowen on DOMA and Empiricism

Does the Defense of Marriage Act (DOMA) accomplish the purpose of defending opposite-sex marriage?  This question, or at least some version of it, is at the heart of the Supreme Court's consideration of United States v. Windsor, as well as of Hollingsworth v. Perry to the extent that Prop 8 is considered a state DOMA.

DbowenIn a new article, I Wanna Marry You: An Empirical Analysis of the Irrelevance and Distraction of DOMAs, available in draft on ssrn, LawProf Deirdre Bowen (pictured) argues that the numbers simply don't add up to providing support for the proposition. 

As her central task, Bowen takes as her comparators states with DOMAs, including constitutional amendments and statutes,  and states without DOMAs  and examines their marriage and divorce rates from 1999-2010 to discover whether DOMA correlates with marital stability and strength.   Her analysis "suggests that DOMA states do not fare any better than non-DOMA states in terms of the strengthening  marriage" and in fact, "DOMA states tend to have lower marriage rates, larger declines in the trend towards marriage, and greater divorce rates."

Her empirical query answered, Bowen the contends that not only is DOMA irrelevant, it serves as a distraction from the real threats that certain economic and social policies pose to family stability, especially with regards to children.  Whatever the Court decides, she implies, will not be sufficient to solve the problem of family volatility.

RR

February 21, 2013 in Equal Protection, Family, Federalism, Gender, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Monday, January 28, 2013

Daily Read: Commentary on the Canada Supreme Court's R. v. N.S. ("the niqab case")

Last month's long-awaited decision in R. v. N.S. by the Canada Supreme Court considered whether or not a witness in a criminal trial had a religious right to wear a niqab during testimony. 

220px-EFatima_in_UAE_with_niqabThe Court's fractured and ultimately unsatisfying decision has prompted some excellent commentary.  A quick round-up from Sonia Lawrence at the Institute for Feminist Studies at Osgoode Hall on the day of the decision has been followed by more discussion.

Canadian ConLawProf Beverley Baines has an excellent commentary over at Jurist.  Professor Baines provides an excellent synopsis of the case and situates it within Canadian constitutional jurisprudence.  She focuses on the Court's analogy between wearing the niqab and publication ban precedent.  Importantly,  she also raises a central question raised by the particular facts in N.S.:

Identity is a complex matter in R. v. N.S.. Given that the accused assailants were her uncle and cousin, they knew the identity of the testifying victim. From N.S.'s perspective, her identity as a Muslim woman was threatened by the niqab ban. Her faith requires her to cover her face in the presence of men who are not members of her immediate family. Removing her niqab would rob her of her religious identity just as would depriving a Jewish man of his kippah, a Sikh of his turban or an Amish of his hair. Nor is the link between the niqab and the presumption of innocence transparent, despite the chief justice's repeated reference to the niqab portending a wrongful conviction. If the niqab is such a serious impediment, might wearing it not result in a wrongful acquittal? 

Professor Natasha Bakht of the University of Ottawa Faculty of Law made a similar argument over at Blogging for Equality earlier this month, stressing the relationship between religious freedom and gender equality in Canadian constitutionalism:

The majority’s decision in NS while keeping the door open for Muslim women to wear the niqab while testifying in certain situations, did not adequately consider NS’s equality or section 7 rights.  Indeed the word equality never appears in the decision! To frame NS’s claim as only rooted in religious freedom is to fundamentally misconstrue the intersectional nature of the issue at stake.  NS is a sexual assault complainant.  Asking a niqab-wearing woman to remove her veil is like asking her to remove her skirt or blouse in court. It is, literally, to strip her publicly and in front of her alleged perpetrators. We know that sexual assault is one of the most underreported crimes in Canada.  Prohibitions on wearing the niqab while giving testimony will only discourage Muslim women from participating in the justice system.

Finally, Stephanie Voudouris at The Court  attempts to "peel back" the layers of the case, again focusing on sexual assault and religious freedom, but also considering demeanor evidence.  Voudouris' discussion is lengthy and provides a solid and objective overview of the case.  But in the end, Voudouris offers a conclusion similar to Baines and Bakht, criticizing the

skewed scale on which the Court balances the harms to trial fairness against the harms to freedom of religion; a scale that may lead lower courts to ban the veil more often than not. Aside from the difficulties with the Court’s attempts to understand freedom of religion generally, this case provokes controversy because, in the words of Justice Abella, the Court is deciding these issues against the backdrop of questions about “whether the niqab is mandatory for Muslim women or whether it marginalizes the women who wear it; whether it enhances multiculturalism or whether it demeans it”, and of whether these global questions matter when a single woman comes before the court to testify against those who have assaulted her, and asks to do so in accordance with her religious beliefs.

The majority opinion seemingly leaves wide discretion to the trial judge.  It will be illuminating to learn what the judge in N.S. - - -  and in other cases - - - ultimately decides. 

 RR
[image via]

January 28, 2013 in Cases and Case Materials, Comparative Constitutionalism, First Amendment, Gender, Religion | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 23, 2013

Ban on Women in Combat to be Lifted

Reputable news sources are reporting the Department of Defense will abandon the ban on women serving in combat; CNN has one of the fullest reports.

The official announcement from the Pentagon should be forthcoming on Thursday.

In November, a complaint in Hegar v. Panetta was filed in the Northern District Court of California, arguing that the policy offended the equal protection component of the Fifth Amendment.  More about the case is available from the ACLU.

800px-Flickr_-_The_U.S._Army_-_Female_flag_officers_honor_first_woman_four-star
ConLawProfs (and students) often encounter the gendered combat exclusion in discussions of Rotsker v. Goldberg (1981) in which the Justice Rehnquist's Court upheld male-only registration for the draft finding women were not "similarly situated" to men because women were not eligible for combat.

RR
[image via]

January 23, 2013 in Equal Protection, Fifth Amendment, Gender, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, January 10, 2013

Daily Read: Leslie Griffin on Free Exercise and the ACA

Faculty_LeslieGriffin_web110x150In a guest post over at the American Constitution Society blog, Professor Leslie Griffin (pictured) discusses the numerous decisions in challenges to the ACA's mandate of reproductive coverage on the basis of the First Amendment's Free Exercise Clause. 

Griffin argues that in these cases, such as Hobby Lobby, the accomodation of religion could violate the Establishment Clause.  Moreover, she argues that neither selling crafts at a profit nor providing employees with benefits should constitute an "exercise" of religion.

The post helpfully provides a great overview and links to all the cases, useful for anyone working in this area.

Worth a read!

RR

January 10, 2013 in First Amendment, Gender, Religion, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Friday, January 4, 2013

Daily Read: The Story Behind The Ninth Circuit's Self-Abortion Opinion

In September, the Ninth Circuit rendered its opinion in McCormack v. Hiedeman regarding the constitutionality of Idaho's "unlawful abortion" statutes that makes it a felony for any woman to undergo an abortion in a manner not authorized by statute.  McCormack had been charged by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet.  The court held that imposing a criminal sanction on a woman poses an undue burden under Casey, but the decision was restricted to McCormack given the absence of class certification.

But who is Jennie Linn McCormack?  And how common is procuring abortion "medications" via the internet?

Tnr-cover_1231121Journalist Ada Calhoun's cover article in this month's The New Republic, "The Rise of DIY Abortions," paints a vivid portrait of Jennie Linn McCormack, as well as her attorney ("an avid fan of The Girl with the Dragon Tattoo books. He saw the character of dogged reporter Mikael Blomkvist as a good role model for a lawyer. . . ").  

Calhoun also contextualizes McCormack's situation:

Determining how many American women have had home abortions is exceedingly difficult: The Centers for Disease Control and Prevention does not track illegal abortions. There is no blood test for drugs like Cytotec, and so such an abortion is indistinguishable from a natural miscarriage, even to a doctor. However, the proliferation of online dispensers suggests a rising demand. There are thousands of websites selling Cytotec for as little as $45 to $75 (compared with $300 to $800 for a legal medicated abortion in a clinic). Some claim to offer the harder-to-come-by Mifeprex, but may in fact be peddling Cytotec, or aspirin, or nothing at all. (Possible sources for the drugs include Mexico, where Cytotec is available over the counter, or even the United States, since it’s also prescribed here as an ulcer medication.)

The question of how drugs like Mifeprex and Cytotec are sold and administered is emerging as the next major front in the abortion debate.

Calhoun's article is a must-read for anyone teaching, writing, or thinking about abortion and is sure to be discussed at the many conferences devoted to Roe v. Wade's 40th anniversary, such as this one at the NYC Bar.

RR

January 4, 2013 in Abortion, Current Affairs, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Recent Cases, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

NYC Bar Event on 40th Anniversary of Roe v. Wade

NycbarlogoThe Fortieth Anniversary of the United States Supreme Court's Landmark Decision, Roe V. Wade
Monday, January 14, 2013 6:30 pm-8:00 pm

2013 marks the 40th anniversary of Roe v. Wade, establishing the constitutionally-protected right to abortion. This program will discuss the evolution of the right to abortion in the courts, public opinion, and political discourse since then and will address the current status of reproductive rights in the United States, including its role in the 2012 presidential election.

Moderator: PRISCILLA SMITH, Senior Fellow at the Information Society Project at the Yale Law School

Speakers:
LOUISE MELLING
, Director, ACLU Center for Liberty
RUTHANN ROBSON
, Professor of Law & University Distinguished Professor, CUNY School of Law
KATHLEEN MORRELL, MD, Physicians for Reproductive Choice and Health
JESSICA GONZALEZ-ROJAS
, Executive Director, National Latina Institute for Reproductive Health
BEBE ANDERSON, Director, U.S. Legal Program, Center for Reproductive Rights

Sponsors: Sex and Law Committee, Pamela Zimmerman, Chair

More information here.

January 4, 2013 in Abortion, Conferences, Due Process (Substantive), Family, Fundamental Rights, Gender, Medical Decisions, Privacy, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 26, 2012

Sotomayor Rejects Hobby Lobby's Emergency Stay of ACA Contraception Coverage Mandate

In her role as Circuit Justice for the Tenth Circuit, Justice Sonia Sotomayor today rejected an application for an injunction pending appellate review from Hobby Lobby.  In her brief order in Hobby Lobby Stores, Inc. v. Sebelius, Sotomayor ruled that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."

Hobby-Lobby-Logo

Recall that in November, an Oklahoma district judge stressed that Hobby Lobby, an arts and crafts store chain operating in 41 states, as well as its co-plaintiff, the Mardel corporation, were secular for-private corporations that did not possess free exercise of religion rights under the First Amendment.  Judge Joe Heaton therefore denied the motion for a preliminary injunction regarding their First Amendment objections to complying with contraceptive requirements under the Patient Protection and Affordable Care Act. 

Sotomayor notes that the Tenth Circuit refused to issue a stay pending appeal and she saw no reason to depart from that conclusion: "Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts. Following a final judgment, they may, if necessary, file a petition for a writ of certiorari in this Court."

RR

December 26, 2012 in Courts and Judging, Current Affairs, Family, First Amendment, Free Exercise Clause, Gender, Opinion Analysis, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Thursday, December 20, 2012

Canada Supreme Court on the Constitutionality of a Veiled Witness in Criminal Prosecution

The Supreme Court of Canada this morning has issued its long-awaited opinion in R. v. N.S., 2012 SCC 72,  essentially affirming the provincial Court of Appeal of Ontario 2010 conclusion regarding the wearing of a niqab (veil) by a witness in a criminal proceeding and dismissing the appeal and remanding the matter to the trial judge.

NiqabAt issue is a conflict of rights that should be familiar to US conlaw scholars: the rights of a witness in a trial, here her religious rights, in opposition to the rights of the accused to a fair trial, including the right to confrontation of witnesses.  The accusing witness, N.S., is a Muslim woman who wished to testify at a preliminary hearing in a criminal case in which the defendants, N.S.'s uncle and cousin, were charged with sexual assault.  The defendants sought to have N.S. remove her niqab when testifying.  The judge heard testimony from N.S., in which she admitted that she had removed her niqab for a driver's license photo by a woman photographer and she would remove her niqab if required at a security check.  The judge then ordered  N.S. to remove her niqab when testifying, concluding that her religious belief was "not that strong."   This determination of the "strength" of N.S.'s belief was one of the reasons for the remand as it troubled the Supreme Court.

Cj4096_Balfour-250The majority opinion, authored by Chief Justice Beverley McLachlin (pictured) and joined by three of the Court's seven Justices, began by noting the conflict of Charter rights at issue: the witness’s freedom of religion and the accused's fair trial rights, including the right to make full answer and defence.  The opinion quickly rejected any "extreme approach" that would value one right over the over, as "untenable."  Instead, the Court articulated the Canadian constitutional law standard of "just and proportionate balance" as:

A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.

In turn, this involved four separate inquiries:

First, would requiring the witness to remove the niqab while testifying interfere with her religious freedom as construed by section 2(a) of the Charter, which centers on a sincere (rather than "strong") religious belief?

Second, would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?  The opinion recognized the deeply rooted presumption that seeing a face is important, but noted that in litigation in which credibility or identification are not involved, failure to view the witness' face may not impinge on trial fairness.

Third, assuming both rights are engaged, the trial judge must ask "is there a way to accommodate both rights and avoid the conflict between them?"

Finally, if accommodation is impossible, the judge should engage in a balancing test, asking whether

the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?  Deleterious effects include the harm done by limiting the witness’s sincerely held religious practice.  The judge should consider the importance of the religious practice to the witness, the degree of state interference with that practice, and the actual situation in the courtroom – such as the people present and any measures to limit facial exposure.  The judge should also consider broader societal harms, such as discouraging niqab-wearing women from reporting offences and participating in the justice system.  These deleterious effects must be weighed against the salutary effects of requiring the witness to remove the niqab.  Salutary effects include preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice.  When assessing potential harm to the accused’s fair trial interest, the judge should consider whether the witness’s evidence is peripheral or central to the case, the extent to which effective cross-examination and credibility assessment of the witness are central to the case, and the nature of the proceedings.  Where the liberty of the accused is at stake, the witness’s evidence central and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance.  The judge must assess all these factors and determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so.

 In sending the case back to the trial judge (and instructing judges in similar situations in the future), the Court provides guidance, yet obviously falls far short of definitive answers. 

The concurring opinion of two Justices argued that a "clear rule" should be chosen.  This rule should be the removal of the niqab because a trial is a "dynamic chain of events" in which a conclusion about which evidence is essential can change. 

Abella250Justice Rosalie Abella (pictured right) wrote the solitary dissenting opinion.  On her view, while rooted in religious freedom, wearing a veil could certainly be analogized to other types of "impediments" in which the face or other aspects of demeanor might be obscured such as when a person is blind, deaf, not an English speaker, a child, or a stroke victim.  Moreover, Abella argued:

Wearing a niqab presents only a partial obstacle to the assessment of demeanour.  A witness wearing a niqab may still express herself through her eyes, body language, and gestures.  Moreover, the niqab has no effect on the witness’ verbal testimony, including the tone and inflection of her voice, the cadence of her speech, or, most significantly, the substance of the answers she gives.  Unlike out-of-court statements, defence counsel still has the opportunity to rigorously cross-examine N.S. on the witness stand. 

Abella also stressed the specifics of the case involved: a sexual assault prosecution by a young woman in which the defendants were members of her own family.

From the perspective of US conlaw scholars, whether or not interested in comparative constitutional law, the Canada Supreme Court's opinion in R. v. N.S. is an important one seeking to balance rights and addressing an issue that is percolating in the United States courts.

RR
[image of niqab via; image of Justices via Canada Supreme Court website]

December 20, 2012 in Comparative Constitutionalism, Criminal Procedure, Free Exercise Clause, Gender, Opinion Analysis, Religion, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)