Friday, March 20, 2015

Puerto Rico Decides Not to Contest Constitutional Challenge to Same-Sex Marriage Ban

In a brief filed today in the First Circuit in Conde-Vidal v. Armendariz, the Solicitor General of the Commonwealth of Puerto Rico essentially sided with the appellants and conceded its same-sex marriage ban is unconstitutional.

Recall that several months ago, United States District Judge for the District of Puerto Rico Juan Perez-Gimenez  dismissed the constitutional challenge to Puerto Rico's law defining marriage as "man and woman" and refusing recognition to marriages "between persons of the same sex or transexuals." In large part, Judge Perez-Gimenez relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question."

The challengers appealed to the First Circuit and the Commonwealth's brief "concedes that Baker’s rationale that federal courts lack jurisdiction to entertain these claims for lack of a substantial federal question can no longer be deemed good law." 

800px-Flag_of_Puerto_Rico_(Light_Blue).svgIndeed, the Commonwealth's brief concedes that the appellants should prevail.  The brief concludes:

It is not usual for the Executive Branch of the Commonwealth of Puerto Rico to refuse to defend the constitutionality of legally-enacted statutes. It is even less usual to adopt a somewhat different position at the appellate level than the one espoused before the lower court. But this is not a usual case and neither the law nor common sense requires us to treat it as such.

In a constitutional democracy there are some rights that have been reserved to the People directly and which no government may infringe, regardless of individual or personal views on the matter. “Our obligation [like this Court’s] is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).

Article 68 of the Civil Code of Puerto Rico excludes LGBT couples from the legal entitlements and rights attendant to civil marriage. Thus, the Commonwealth of Puerto Rico acknowledges that the statute in controversy raises substantial constitutional questions anent the constitutional guarantees of equal protection of the laws and substantive due process.

Because Puerto Rico’s marriage ban impermissibly burdens Plaintiffs ́ rights to the equal protection of the laws and the fundamental right to marry, we have decided to cease defending its constitutionality based on an independent assessment about its validity under the current state of the law. However, “i[t] is emphatically the province and duty of the judicial department to say what the law is.” Windsor, 133 S.Ct. 2675, at 2688 (quoting Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1802)), and, since the District Court entered judgment in this case, it is this particular Court’s duty to review the legal conclusions there reached so that they may be brought up to date in accordance with newer developments in this important area of constitutional law.

If History has taught us anything, it is that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence, 579 U.S. at 579. This case represents but another attempt from a politically disadvantaged group of our society to be included within the full scope of the legal and constitutional protections that most of us take for granted. Plaintiffs seek no preferential treatment; only equality. The Executive Branch of the Commonwealth recognizes the LGBT community’s right to equality under the law.

Defendants-Appellees request that this Honorable Court reverse the Judgment of the District Court that dismissed Plaintiffs-Appellants’ complaint for lack of a substantial federal question.

Given this concession, the First Circuit - - - which has not had occasion to rule on a challenge to a "state" same-sex marriage ban - - - is sure to find that Puerto Rico's same-sex marriage ban is unconstitutional, assuming it reaches the issue before the United States Supreme Court decides the issue in the cases presently before it. 

Recall that the First Circuit did rule that DOMA, the Congressional statute barring federal recognition of same-sex marriage, was unconstitutional in 2012, before the  United States Supreme Court held DOMA unconstitutional in United States v. Windsor, but after the United States Attorney General, Eric Holder, announced the Department of Justice would not defend the constitutionality of DOMA. 

March 20, 2015 in Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Interpretation, News, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 2, 2015

Nebraska Federal Judge Declares Same-Sex Marriage Ban Unconstitutional

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. 

NebraskaJudge 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 [15]:

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)

Monday, February 9, 2015

Supreme Court Denies Stay of Alabama Same-Sex Marriage While Alabama Supreme Court Chief Justice Continues the Argument

Over a dissenting opinion by Justice Thomas, joined by Justice Scalia, the Court denied the application for a stay in Strange v. Searcy.  Recall that in January, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.

381px-LGBT_flag_map_of_Alabama.svgThe controversial Chief Judge of the Alabama Supreme Court Roy Moore has reacted negatively to the federal court opinion, including penning a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order.  That letter prompted an ethics complaint filed against Roy Moore from the Southern Poverty Law Center arguing that:

Chief Justice Roy Moore has improperly commented on pending and impending cases; demonstrated faithlessness to foundational principles of law; and taken affirmative steps to undermine public confidence in the integrity of the judiciary. For all these reasons, we respectfully request that this Judicial Inquiry Commission investigate the allegations in this complaint and recommend that Chief Justice Moore face charges in the Court of the Judiciary.

On February 3, the Eleventh Circuit denied the stay of Judge Granade's injunction and Judge Moore issue a 27 page memorandum addressed to Alabama Probate Judges with the intent to 

assist weary, beleaguered, and perplexed probate judges to unravel the meaning of the actions of the federal district court in Mobile, namely that the rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law.

Judge Moore's argument that the state need not comply with federal decisions has prompted some commentators to make comparisons to Alabama's position during the Civil Rights Era, including a thoughtful WaPo piece by ConLawProf Ronald J. Krotoszynski Jr. at University of Alabama Law School. 

The dissenting opinion from Justice Thomas (joined by Scalia) did not mention Judge Moore by name, but did include a decisive nod to some of Moore's arguments:

Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. *** It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.

Perhaps more importantly, Justice Thomas notes that the constitutionality of same-sex marriage is now before the Court, but yet

the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013).  This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.

 Justice Thomas is not the only one considering whether the Court's denial of a stay and thus allowing same-sex marriages to proceed in Alabama is a "signal" of the Court's leanings in DeBoer v. Snyder.

February 9, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Interpretation, News, Opinion Analysis, Recent Cases, Supremacy Clause, Supreme Court (US), Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Friday, January 2, 2015

Daily Read: Will Supreme Court Hear NSA Challenge in 2015?

Cyrus Favier, over at ars technica, surveys the candidates of current litigation- - - five! - - -that might bring the issues of the constitutionality of NSA surveillance to the United States Supreme Court. 

Favier looks at the dueling opinions in Klayman v. Obama and ACLU v. Clapper, as well as lesser known cases winding their ways through the courts.  And as he implies, regardless of the status of these particular cases, there are plenty more percolating:

Case name: N/A
Status: Ongoing

Moreover, the Court's unanimous recent opinion in Riley v. California finding a cell phone search requires a warrant and the continuing uncertainty over the 1979 "pen register" case Smith v. Maryland gives some credence to the speculation.

ConLawProfs looking for something accessible yet substantively provocative for the first day of classes should take a look at Favier's article.

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[image via]

January 2, 2015 in Criminal Procedure, First Amendment, Foreign Affairs, Fourth Amendment, Interpretation, Recent Cases, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 16, 2014

Ninth Circuit Upholds LA's Condom Mandate in Adult Films

In its opinion in Vivid Entertainment v. Fielding, a panel of the Ninth Circuit affirmed the district judge's denial of a preliminary injunction to Los Angeles Measure B, passed by voter initiative in 2012.

The central issue in the case was the so-called "condom mandate" that requires performers to use condoms during "any acts of vaginal or anal sexual intercourse."  The opinion, authored by Judge Susan Gruber, and joined by Judge Alex Kozinksi and sitting by designation Judge Jack Zouhary), agreed with the district judge that the First Amendment challenge to the mandate was subject to intermediate scrutiny.  The Ninth Circuit relied in large part on the "secondary effects" doctrine, finding that

The purpose of Measure B is twofold: (1) to decrease the spread of sexually transmitted infections among performers within the adult film industry, (2) thereby stemming the transmission of sexually transmitted infections to the general population among whom the performers dwell.

SafeSexThe court rejected the argument that strict scrutiny should apply nevertheless because Measure B was a "complete ban" on the protected expression, which plaintiffs would define as "condomless sex" ("condomless sex differs from sex generally because condoms remind the audience about real-world concerns such as pregnancy and disease . . . films depicting condomless sex convey a particular message about sex in a world without those risks).   Citing Spence v. Washington (1974), the Ninth Circuit concluded that "whatever unique message Plaintiffs might intend to convey by depicting condomless sex, it is unlikely that viewers of adult films will understand that message."  Moreover, in an interesting footnote (6), the Ninth Circuit distinguished between the expression and the conduct: 

On its face, Measure B does not ban expression; it does not prohibit the depiction of condomless sex, but rather limits only the way the film is produced.

(emphasis in original).  The panel opinion also discussed - - - and rejected - - - the arguments that Measure B was not sufficiently "narrowly tailored" in the intermediate scrutiny test because there was a voluntary testing and monitoring cheme for sexually transmitted diseases and that Measure B would be "ineffective" because producers could simply move beyond county lines. 

The district judge did, however, find that certain portions of Measure B did not survive the constitutional challenge.  On appeal, the plaintiffs argued that Measure B was not subject to severance.  The Ninth Circuit panel rejected the severance argument, but helpfully included as an appendix to its opinion a "line-edited version" of Measure B.

Finally, the Ninth Circuit panel rejected the argument that the appellate court did not have Article III power to hear the appeal because the intervenors - - - including a Campaign Committee Yes on Measure B - - - lacked Article III standing.  The panel distinguished Hollingsworth v. Perry (the Prop 8 case), noting that here it was not the intervenors that sought to appeal but the plaintiffs themselves who had invoked the court's power.

[image via]

December 16, 2014 in Film, First Amendment, Fourteenth Amendment, Interpretation, Opinion Analysis, Sexuality, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, December 15, 2014

Bill of Rights Day 2014

December 15 is Bill of Rights Day.

President Obama's proclamation this year includes this passage:

On the anniversary of the Bill of Rights, we reflect on the blessings of freedom we enjoy today, and we are reminded that our work to foster a more free, more fair, and more just society is never truly done. Guided by these sacred principles, we continue striving to make our country a place where our daughters' voices are valued just as much as our sons'; where due process of law is afforded to all people, regardless of skin color; and where the individual liberties that we cherish empower every American to pursue their dreams and achieve their own full measure of happiness.

Wondering how - - - and why - - - Bill of Rights Day began?  Or why it is not a paid holiday (like "Independence Day")?  Or which President decided not to issue a proclamation for the day?  Or why the Bill of Rights as the proposed initial amendments were not all about "rights"?  And why we do - - - like Obama - - - tend to "read in" a notion of equality although it is noticeably absent?
 
Some answers are here in my column that begins: "Forgive yourself if you haven't made any special plans for Bill of Rights Day again this year."
 
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National Archives image via

December 15, 2014 in Current Affairs, Equal Protection, History, Interpretation | Permalink | Comments (0) | TrackBack (0)

Friday, December 12, 2014

Daily Reads: On Torture

With the publication of the more than 500 page  "Executive Summary" of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency's Detention and Interrogation Program (searchable document here),  the subject of torture is dominating many public discussions.

A few items worth a look (or second look):

    In French, Justice Scalia's interview with Le Journal du matin de la RTS (videos and report) published today.  One need only be marginally fluent in French to understand the headline: "La torture pas anticonstitutionnelle", dit le doyen de la Cour suprême US.  (h/t Prof Darren Rosenblum).

    The French report will not surprise anyone familiar with Justice Scalia's discussion of torture from the 2008 "60 Minutes" interview discussed and excerpted here.

    The "ticking time bomb" discussion in Scalia's remarks is the subject of an interesting commentary by ConLawProf Rosa Brooks in Foreign Policy provocatively entitled "Tick, Tick, Bull, Shit."

    And while Justice Scalia contended that defining torture is going to be a "nice trick," LawProf David Luban's 2014 book Torture, Power, and Law offers very explicit definitions, even as it argues that these definitions can erode as torture becomes "normalized," seemingly giving credence to Scalia's point.

800px-Woodcut_illustration_of_Leaena_-_Penn_Provenance_Project
Woodcut circa 1540 via

 

December 12, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Executive Authority, Foreign Affairs, International, Interpretation, News, Scholarship, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 8, 2014

Penny Pether Conference at Villanova

Villanova Law Review  Symposium to Honor Professor Penelope J. Pether

October 24, 2014

PetherSpeakers include:

  • Christopher Tomlins, Professor of Law, University of California-Berkeley School of Law: "A Fierce and Critical Faith: A Remembrance of Penny Pether"
  • Marianne Constable, Professor, University of California-Berkeley: "Be True to What You Said on Paper: Pether on U.S. Publication Practices, Precedent, and the Positivism of Law and Language"
  • Nan Seuffert, Professor of Law, Wollongong University School of Law: "A Seat at the National Table: Pether's Culinary Jurisprudence"
  • Joseph Pugliese, Professor, Macquarie University: "The Open in the Case: Guantanamo's Regime of Indefinite Detention and the Disintegration of Adnan Latif's Corporeal Hexis Through Administrative Practices of Torture"
  • Kunal Parker, Professor of Law and Dean's Distinguished Scholar, University of Miami School of Law: "Representing Interdisciplinarity"
  • Mark Sanders, Professor of Comparative Literature, New York University: "Consequences of Reform: Penny Pether on Rape Law in Illinois and Australia"

Keynote Address

  • Peter Goodrich, Professor of Law, Cardozo School of Law: "On Foreign Ground: Friendship and the Force of Law"

More information here

October 8, 2014 in Foreign Affairs, International, Interpretation, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sirico on Constitutional Counter-Factual Futures

Prof. Lou Sirico (Villanova) turns the counterfactual historical method on its head in his recently posted The Constitutional Convention: Drafting to Charter Future History. The result, argues Sirico: The Founders wrote and ratified the Constitution with an eye toward managing counterfactual futures.

Sirico looks at five areas--the debates surrounding the Ex Post Facto Clause, the authority to define international law, slavery, territorial expansion, and the decision not to include the word "national" in the text--to argue that the drafters sought to achieve, or avoid, certain futures.

For example, in forbidding ex post facto laws, the deputies were forbidding laws that the international community would have deemed illegitimate. Arguably, they attempted to prevent future Congresses from enacting laws that would have marked the new nation as lawless.

Sirico says that the counterfactual-future method suggests certain lessons on how we understand--and interpret and use--the document. Check it out.

October 8, 2014 in Interpretation, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 22, 2014

CFP: Ferguson Conference at University of Missouri School of Law

A call that should be of interest to many ConLawProfs:

Policing, Protesting, and Perceptions:

A Critical Examination of the Events in Ferguson

at the University of Missouri

800px-Memorial_to_Michael_Brown
image via

 

Here are some details on the call for works-in-progress:

 The University of Missouri Law Review is issuing a call for proposals for an upcoming Works-in-Progress conference, which will be held on Thursday, February 26, 2015 in conjunction with the Missouri Law Review’s Symposium, which will take place the following day Friday, February 27, 2015. The symposium, "Policing, Protesting, and Perceptions: A Critical Examination of the Events in Ferguson," focuses on a number of issues that arose from the events in Ferguson, Missouri this past August following the shooting of Michael Brown, and will include a number of invited panelists. Marc Mauer, the Executive Director of The Sentencing Project, will deliver the keynote address. On Thursday, February 26, 2015, the Missouri Law Review will host several works-in-progress panels related to the subject matter of the symposium.

If you interested, we would ask that you submit a presentation proposal. Presentation proposals should be no more than one page in length. The topic of the presentation can include analyses that are practical, theoretical or interdisciplinary in nature relating to what transpired in Ferguson, MO. Proposals from scholars outside the United States are also welcome, although prospective attendees should note that there is no funding available to assist participants with their travel expenses. Proposals for the works-in-progress will be accepted until November 15, 2014. Those interested may submit proposals and direct questions to Professor S. David Mitchell (MitchellSD AT missouri.edu). Decisions regarding accepted proposals will be made by December 1, 2014. 

September 22, 2014 in Conferences, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Interpretation, Race, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 3, 2014

Louisiana Federal Judge Upholds State's Same-Sex Marriage Ban

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." 

750px-Louisiana_map_Colton_1856

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)

Friday, July 4, 2014

Equality at the Core of the Declaration

Danielle Allen's (Princeton) just pubished her new book Our Declaration: A Reading of the Declaration of Independence in Defense of Equality right in time for your own annual reading of the Declaration--today, July the Fourth.

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Allen's book is a meditation on the Declaration that starts with her own teaching of the document and moves through history, philosophy, culture, and, of course, a close reading of the text.  More importantly, it's an argument that equality is at the Declaration's core--a point often missed in today's liberty-laden reading of the document (and today's liberty-laden politics). 

[The Declaration] makes an argument about political equality. . . . [I]t makes a cogent philosophical case for political equality, a case that democratic citizens desperately need to understand. . . .

The purpose of democracy is to empower individual citizens and give them sufficient control over their lives to protect themselves from domination.  In their ideal form, democracies empower each and all such that none can dominate any of the others, nor any one group, another group of citizens. . . .

The point of political equality is not merely to secure spaces free from domination but also to engage all members of a community equally in the work of creating and constantly re-creating that community.  Political equality is equal political empowerment.

Allen was recently in the news for her argument that there's really no period after "Happiness" in the text, despite its inclusion in the official transcript of the document at NARA.  That's important, because without a period the link between the rights to "life, liberty, and happiness" and the purpose of government is even yet closer.  That is: without a period, it's even clearer that government is "instituted among men" in order to secure our rights to "life, liberty, and happiness." 

You can hear Allen on the Diane Rehm show yesterday.  Here's WaPo's book review.

July 4, 2014 in History, Interpretation, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, July 3, 2014

New York's Highest Court Finds Cyberbullying Law Violates First Amendment

In its opinion in People v. Marquan M, the New York Court of Appeals (NY's highest court), found that Albany Local Law 11 (2010)  criminalizing cyberbullying was unconstitutional under the First Amendment. 

The local law for Albany County criminalized cyberbullying against any "minor or person" (with "person" interestingly defined as including corporations) with cyberbullying defined as:

any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.

450px-Bully_Free_ZoneThe majority opinion, authored by Judge Victoria Graffeo for four additional judges over a two-judge dissent, found that the law was overbroad under the First Amendment: "the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult." 

The defendant and his actions here - - - a 15 year old who used Facebook to anonymously post "photographs of high-school classmates and other adolescents, with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information," with "vulgar and offensive" "descriptive captions" - - -  were within the "cyberbullying" that the Local Law intended to proscribe.  But even Albany County agreed that the local law was overbroad.  However, the County argued that the severability clause of the local law should be employed to excise the word "person" so that the only covered victims were minors.  But the court found that even that would not "cure all of the law's constitutional ills."   The dissenters would have engaged in saving constructions.

In ruling that a local law intended to criminalize as a misdemeanor cyberbullying did not survive the First Amendment because it was overbroad, New York's highest court left open the possibility that a prohibition of cyberbullying could be more narrowly crafted to survive First Amendment review:  "the First Amendment does not give defendant the right to engage in these activities." 

However, the court's opinion offers little guidance about how such a law or policy should be drafted.  New York's Dignity for All Students Act  as amended in 2012 places the responsibility for developing "policies and procedures intended to create a school environment that is free from harassment, bullying and discrimination" on school boards.  While Albany's law was a general criminal statute, school boards will undoubtedly be considering Marquan M. as they review their current "cyberbullying" prohibitions in light of the First Amendment.  They may also be recalling the Third Circuit's unhelpful intervention in a pair of "My Space" cases in which principals were arguably "bullied. 

And undoubtedly, those interested in cyberbullying in and out of schools will be watching the "true threats on Facebook case," Elonis v. United States, to be heard by the United States Supreme Court next Term.

 [image via]

July 3, 2014 in Courts and Judging, First Amendment, Interpretation, Opinion Analysis, Speech, State Constitutional Law, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 25, 2014

Tenth Circuit Holds Utah's Same-Sex Marriage Ban Unconstitutional in a Divided Decision

In a divided decision, the Tenth Circuit opinion in Kitchen v. Herbert held that the

Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that [Utah's state constitution's] Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny.

Affirming the district court's decision as well as its analysis, the Tenth Circuit panel majority, authored by Judge Carlos Lucero, and joined by Judge Jerome Holmes, applied strict scrutiny because it found that the "right to marry is a fundamental liberty."

In applying strict scrutiny, the panel majority assumed that three of the four interests advanced by the government - - - (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction” - - - were compelling.  However, the court found that the means chosen - - - the prohibition of same-sex marriage - - - did not sufficiently serve these interests.  Instead, each of the

justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples.

The court noted that Justice Scalia, dissenting in Windsor, and numerous district judges, reached a similiar conclusion.  The majority observed that the lack of narrow tailoring is "often revealed" by underinclusiveness, finding it important that Utah did not ban nonprocreative marriages. 

The court's analysis of each of the three rationales is substantial and erudite, firmly rooted in precedent and well-reasoned.

As to the fourth and final interest asserted by the government - - -“accommodating religious freedom and reducing the potential for civic strife,” - - - the court reasoned that "the Supreme Court has repeatedly held that public opposition cannot provide cover for a violation of fundamental rights" and emphasized that its "decision relates solely to civil marriage." 

Dissenting from the more than 60 page majority opinion, Judge Paul Kelly wrote more than 40 pages in disagreement (although he did agree with the majority on the standing issue, making the opinion concurring in part).   Not surprisingly, he disagreed with the level of scrutiny to be applied; he concluded that there was no fundamental right at issue and would have applied rational basis scrutiny.  Also not surprisingly, he would have concluded that Utah's ban on same-sex marriage satisfied this most easily satisfied level of scrutiny given the state's interests in (1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area.

More surprisingly, Judge Kelly found that the Supreme Court's per curiam dismissal in 1972 of Baker v. Nelson, for "want of a substantial federal question" controlling ; it  "should foreclose the Plaintiffs’ claims, at least in this court," notwithstanding the Court's decision invalidating the federal Defense of Marriage Act's ban on recognition of same-sex marriage last term in Windsor.

 If - -  and most probably when - - - the United States Supreme Court does consider the issue of state laws banning same-sex marriage, Baker v. Nelson will be irrelevant and the Court will directly grapple with issues if fundamental constitutional rights and levels of scrutiny under the Fourteenth Amendment's due process and equal protection doctrines. 

Given that the Tenth Circuit stayed its decision pending the disposition of any subsequently filed petition for certiorari it may be that both sides seek review from the United States Supreme Court,

June 25, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Thursday, June 5, 2014

Daily Read: Ellen Katz on Hobby Lobby and Citizens United

Image_facbioIn her relatively brief essay Hobby Lobby and the Pathology of Citizens United, available on ssrn, Professor Ellen Katz (pictured) advances a doctrinal and jurisprudential argument - - - rather than political or consequentialist ones - - - for the "danger" of Citizens United v. FEC.

Katz contends:

Citizens United read a number of prior decisions to adopt rules those decisions deliberately chose not to espouse. This is not an entirely new move for the Court as it has previously cast off a decision’s doctrinal limits and stated normative claims. The contribution of Citizens United, however, was to normalize this stance. The Roberts Court seems increasingly comfortable approaching precedent just as it did in that case. This Essay identifies this move as a consistent practice across a number of decisions, and explains both why it is likely to be used in the pending ACA cases and beyond, and why it is cause for deep concern.

It is a phenomenon Katz labels "fanciful precedent."  She contends it was operative in last Term's controversial Shelby County v. Holder.

She argues that it was prominent in Citizens United related to the Court's use of First National Bank of Boston v. Bellotti (an issue of footnotes as we discuss here and here), in a manner that might foreshadow any Robert Court opinion in Hobby Lobby "relying" on United States v. Lee and Braunfeld v. Brown

Katz's short piece is worth a read as we await the Court's decision in Sebelius v. Hobby Lobby Stores, Inc. (and Conestoga Woods Specialties, Corp. v. Sebelius) argued in March. 

June 5, 2014 in Campaign Finance, Courts and Judging, Elections and Voting, First Amendment, Interpretation, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, June 2, 2014

Carol Anne Bond Prevails in United States Supreme Court: Court Avoids Treaty Power Ruling

On her second trip to the United States Supreme Court, Carol Anne Bond prevailed again.

Recall that Carol Anne Bond was convicted of a crime in violation of the Chemical Weapons Implementation Act, 18 U.S.C. § 229(a), passed to implement a treaty , the Chemical Weapons Convention. But the fact that she is not a "terrorist," but rather a "vengeful" participant in a "love triangle" has caused much consternation.  While the international arms-control agreement prohibits nation-states from producing, stockpiling, or using chemical weapons, Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband.   Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.

Recall that in 2011, the Court unanimously held that Bond could raise a Tenth Amendment claim in her prosecution, reversing the Third Circuit. On remand, the Third Circuit rejected Bond's argument to  "set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress's ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution."

Today's opinion in Bond v. United States again reverses the Third Circuit.  The focus in oral argument  was on the Treaty power and whether a treaty can alter constitutional structures, namely federalism.  And while today's decision is unanimous, there are multiple concurring opinions.

The opinion for the Court, authored by Chief Justice Roberts, and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, is a relatively brief 21 pages and notes that the Bond's case is "unusual" and thus the "analysis is appropriately limited."  For the Court,

the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise.

Essentially, the Court practices constitutional avoidance by construing the statute narrowly; there is no need to confront Holland v. Missouri's holding regarding the constitutional parameters of Congress's treaty power. 

Indeed, the Court only mentions Holland in its discussion of the Third Circuit's holding and Bond's arguments; it notes that notwithstanding that "debate" there is a "well-established principle" of constitutional avoidance and includes a citation to Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). Because "Bond argues that section 229 does not cover her conduct" it considers "that argument first," and finds it decides the issue. 

In a nutshell, the Court concludes that the federal prosecutors exceeded the power the statute gave them - - - and thus there is no need to decide whether Congress exceeded the power the Constitution's treaty and necessary and proper powers gave it.

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Nations in green are signatories to
Chemical Weapons Convention via

Justice Scalia, concurring and joined by Thomas, would conclude that the statute clearly covers Bond's Act and therefore is unconstitutional.  Justice Thomas writes a separate concurrence, joined by Scalia and in part by Alito, writes separately to "suggest that the Treaty Power is itself a limited federal power."  And in a very brief opinion, Alito argues that the "insofar as the Convention may be read to obligate the United States to enact domestic legislation criminalizing conduct of the sort at issue in this case, which typically is the sort of conduct regulated by the States, the Convention exceeds the scope of the treaty power" and thus the statute "lies outside Congress’ reach unless supported by some other power enumerated in the Constitution."

So, while the opinion is "unanimous," the three Justices considered to be the most conservative and perhaps most hostile to international law, would have limited Congress' power to implement treaties made pursuant to Article II §2 allowing the executive to "make Treaties, provided two thirds of the Senators present concur."

And for ConLawProfs, it demonstrates the relevance of the "Ashwander doctrine" as a part of constitutional law courses.

June 2, 2014 in Cases and Case Materials, Congressional Authority, Criminal Procedure, Executive Authority, Federalism, International, Interpretation, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, May 23, 2014

Daily Read: Lithwick on Murphy on Scalia

Scalia bookDahlia Lithwick highlights the problematics of religion in her review in The Atlantic of the new biography of Justice Antonin Scalia, Scalia: A Court of One, by Bruce Allen Murphy. 

Lithwick highlights the Supreme Court's recent decision in Town of Greece v. Galloway upholding the constitutionality of  Christian prayers at a town board meeting and the upcoming decision in Hobby Lobby on the claims of a for-profit corporation to an exemption from the federal requirement that employer insurance coverage include contraception benefits. 

She is very complimentary of the biography:

In Bruce Allen Murphy, Scalia has met a timely and unintimidated biographer ready to probe. A professor of civil rights at Lafayette College, Murphy refuses to be daunted by the silence that surrounds most discussions about religion and the Court. In his view, understanding one of the most dazzling and polarizing jurists on the Supreme Court entails, above all, examining the inevitably murky relationship between judicial decision making and religious devotion.

Indeed, she writes

Murphy does not shrink from adjudicating Scalia’s dueling public claims: that separating faith from public life is impossible and, at the same time, that he himself has done just that on the Court.

From Lithwick's review, A Court of One is  a must-read this summer. But Lithwick's review is also a must-read; she conjectures that "Murphy misses the moral of his own story."

May 23, 2014 in Books, Courts and Judging, First Amendment, Interpretation, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 20, 2014

Waldman's Biography of the Second Amendment

Michael Waldman, writing over at Politico, tells the story of how the NRA rewrote the Second Amendment, not through the Article V process, but through persistent and carefully calculated political action and legal argument. Over time, the NRA's position worked its way into the consciousness of politicians and judges and lawyers and ordinary people, until Heller seemed to many (and obviously most on the Court) like an inevitability.  That process--and not raw legal argument, not some new and significant historical find, and certainly not a constitutional amendment--is how we got the individual right to keep and carry guns, according to Waldman.

Waldman, the president of the Brennan Center for Justice at NYU, writes on the occasion of the release of his latest book, The Second Amendment: A Biography.

Waldman's piece in Politico is as much about the political process of constitutional change as it is about the Second Amendment.  In that way, it's a how-to for anyone interested in influencing the direction of constitutional law outside the amendment process, and a healthy reminder that a well organized movement can still influence the direction of American constitutional law:

So how does legal change happen in America?  We've seen some remarkably successful drives in recent years--think of the push for marriage equality, or to undo campaign finance laws.  Law students might be taught that the court is moved by powerhouse legal arguments or subtle shifts in doctrine.  The National Rifle Association's long crusade to bring its interpretation of the Constitution into the mainstream teaches a different lesson: Constitutional change is the product of public argument and political maneuvering.  The pro-gun movement may have started with scholarship, but then it targeted public opinion and shifted the organs of government.  By the time the issue reached the Supreme Court, the desired new doctrine fell like a ripe apple from a tree.

May 20, 2014 in Fundamental Rights, Interpretation, News, Scholarship, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Sunstein on Epstein's Classical Liberal Constitution

Cass Sunstein, writing over at the New Republic, called Richard Epstein's latest book, The Classical Liberal Constitution: The Uncertain Quest for Limited Government, "passionate, learned, and committed," "a full-scale and full-throated defense of his unusual [libertarian] vision of the Constitution," and his "magnum opus."  Sunstein also places Epstein at the center of Tea Party constitutionalism, "the man who made libertarians wrong about the Constitution."  "Everyone knows who Rand Paul's father is, but in an intellectual sense it is Richard Epstein who is his daddy."

But Sunstein argues that Epstein is a "stranger in a strange land" in arguing about the Constitution--that he "is steeped not in American constitutional law but in Anglo-American common law."  According to Sunstein, Epstein's views are more moral than doctrinal or historical (and certainly not originalist), and that he's "playing Dworkin's game" of reading the text through a moral lens:

Epstein is a moral reader.  He objects that progressives ignore the constitutional text, and of course he cares about it, but he acknowledges that on many issues that matter, the text, standing alone, does not mandate his interpretation.  Where the rubber hits the road, his real argument is not about Madison and Hamilton, the inevitable meaning of words, or the placement of commas; it is an emphatically moral one.  Informed though it is by a certain strand in liberal thought, it reflects what he thinks morality requires.  Of course other people think differently.  There is an important lesson here about Tea Party constitutionalism as a whole, for the supposed project of "restoring" the original Constitution, or going back to the genius of the Founding generation, is often about twenty-first century political convictions, not about the recovery of history.

May 20, 2014 in Interpretation, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, May 19, 2014

Oregon District Judge Declares Same-Sex Marriage Ban Unconstitutional

Joining a decided trend which we last discussed here and here, today Oregon District Judge Michael McShane declared unconstitutional the state’s same-sex marriage prohibition in Article 15 of the state constitution. Judge McShane’s 26 page  opinion in Geiger v. Kitzhaber concludes that because “Oregon’s marriage laws discriminate on the basis of sexual orientation without a rational relationship to any legitimate government interest, the laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.”

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voting in 2004 ballot measure defining marriage as man/woman only: red is no; green is yes; dark green is yes by 2/3 or more; via

Judge McShane noted that the state defendants “concede that Oregon's marriage laws banning same-gender marriage are unconstitutional and legally indefensible, but state they are legally obligated to enforce the laws until this court declares the laws unconstitutional,” and thus, the case “presents itself to this court as something akin to a friendly tennis match rather than a contested and robust proceeding between adversaries.”  However, McShane did not find (or analyze) any Article III “case or controversies” issues, or address standing (including defendant standing).

Judge McShane notes that last term’s decision in Windsor v. United States  finding DOMA unconstitutional

may be distinguished from the present case in several respects. Yet, recounting such differences will not detract from the underlying principle shared in common by that case and the one now before me. The principle is one inscribed in the Constitution, and it requires that the state's marriage laws not "degrade or demean" the plaintiffs in violation of their rights to equal protection.

Unlike Justice Kennedy’s opinion for the Court in Windsor, however, Judge McShane’s opinion in Geiger is quite specific regarding the level of scrutiny being applied: rational basis.  McShane rejected two arguments for intermediate scrutiny.  First, he rejected the argument based upon a gender classification, concluding that the “targeted group here is neither males nor females, but homosexual males and homosexual females” and thus the state's marriage laws discriminate on the basis of sexual orientation, not gender.  Second, he rejected the applicability of the Ninth Circuit’s opinion in SmithKline Beecham Corp. v. Abbott Labs, reasoning that the panel's decision in SmithKline is not yet a truly final and binding decision given that the mandate has not issued pending en banc review. (Recall that last week, a federal district judge in Idaho found "SmithKline’s examination of Windsor is authoritative and binding").

Judge McShane then engaged in the by now familiar analysis of government interests - - - including protecting traditional marriage and promoting responsible procreation - - - and their relationship to the same-sex marriage prohibition.  Like his fellow judges in recent cases, Judge McShane found rational basis is not satisfied.

And like some of his fellow judges, McShane shared his personal perspective.  McShane's provided his in an extended conclusion:

I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage (and thereby expanding the benefits and rights that accompany marriage) to gay and lesbian families. It was these same objections that led to the passage of Measure 36 in 2004 [the ballot measure defining marriage as only between a man and a woman]. Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion,
a mental disorder, or a mortal sin. I remember that one of the more popular playground games of my childhood was called "smear the queer" and it was played with great zeal and without a moment's thought to today' s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing. It was but 1~86 when the United States Supreme Court justified, on the basis of a"millennia of moral teaching," the imprisonment of gay men and lesbian women who engaged in consensual sexual acts. Bowers, 478 U.S. at 197 (Burger, C.J., concurring), overruled by Lawrence, 539 U.S. at 578. Even today I am reminded ofthe legacy that we have bequeathed today's generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says "dad ... that is so gay."

It is not surprising then that many of us raised with such a world view would wish to protect our beliefs and our families by turning to the ballot box to enshrine in law those traditions we have come to value. But just as the Constitution protects the expression of these moral viewpoints, it equally protects the minority from being diminished by them.

It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading "God Hates Fags" make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities.

My decision will not be the final word on this subject, but on this issue of marriage I am struck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.

Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise.

 Judge McShane's opinion ends with a exhortation perhaps more befitting religious rhetoric than legal analysis.

 

May 19, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Fourth Amendment, Interpretation, Jurisdiction of Federal Courts, Opinion Analysis, Reproductive Rights, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)