Saturday, December 7, 2013
In Craig and Mullins v. Masterpiece Cakeshop, Inc., the subject is not the ACA ("Obamacare") as in the cases recently granted certiorari by the United States Supreme Court, or even a UK hotel or wedding photographs, both of which we discussed here, but a cake. But all these cases raise a similar question: can a secular for-profit corporation, or its owners, be exempted from a law by reason of a religious belief?
The 14 page opinion of the Administrative Law Judge (ALJ) in Masterpiece Cakeshop firmly rejects the arguments of the Cakeshop, reasoning that to accept its position would be to "allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage." The ALJ was not persuaded by the fact that Colorado, where the cakeshop is located, does not recognize same-sex weddings, because the cakeshop owner admitted he would feel similarly if it were a same-sex commitment ceremony or civil union, neither of which is forbidden by state law. Indeed, nothing compels the cakeshop or its owner "to recognize the legality of a same-sex wedding or to endorse such weddings," only, like "other actors in the marketplace serve same-sex couples in exactly the same way they would serve heterosexual ones."
The ALJ rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of "same-sex and heterosexual couples equally is the equivalent of forcing" adherence to “an ideological point of view.” The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'"
As to the free exercise claim, the ALJ noted that the regulation at issue distinctly regulated conduct rather than belief. The ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test. The ALJ also rejected the argument "because the public accommodation law not only restricts their free exercise of religion, but also restricts their freedom of speech and amounts to an unconstitutional “taking” of their property without just compensation in violation of the Fifth and Fourteenth Amendments" a hybrid right meriting strict scrutiny was involved. For the ALJ, the "mere incantation" of other constitutional rights does not a hybrid claim create.
The remedy was a cease and desist order rather than damages.
[image: one of the cakes advertised on the Masterpiece Cakeshop website]
Thursday, December 5, 2013
Seventh Circuit Rejects First Amendment Claim of Guidance Counselor's Termination for Writing Sexually Explicit Book
In its opinion in Craig v. Rich Township High School District 227, the Seventh Circuit upheld the ability to terminate a high school guidance counselor for writing and self-publishing a book entitled It's Her Fault.
The book is one of relationship advice for women, based on Carig's experience of counseling and his determination that women's emotionality disadvantages them in their quest to have a relationship with a man. But as the Seventh Circuit panel noted, Craig's book uses "sexually explicit terminology throughout" and includes advice to women on "the wonderful world of submissiveness," as well as delving into "a comparative analysis of the female genitalia of various races." Craig's book referenced his employment as a guidance counselor at the school, citing his interactions with women when “coach[ing] girls basketball, work[ing] in an office where I am the only male counselor, and [being] responsible for roughly 425 high school students a year, about half of whom are females.”
Craig's First Amendment challenge to his termination was dismissed by the federal district judge in Illinois because it failed to address a matter of public concern as required by Pickering v. Board of Education (1968). The Seventh Circuit disagreed, concluding
Viewed as a whole, “It’s Her Fault” addresses adult relationship dynamics, a subject that interests a significant segment of the public. The proliferation of advice columns dealing with precisely this topic is a testament to its newsworthiness.
Nevertheless, the Seventh Circuit panel affirmed the district judge's dismissal, finding that the public employer's interest in promoting efficient and effective public service outweighed the interests of the public employee speaking on a matter of public concern. Craig argued that his speech occurred outside his employment and was unrelated to it, but the Seventh Circuit concluded that Craig took deliberate steps to link his book to his employment. As to the effect on the employer's interests, the panel looked at the classic First Amendment employee cases of Rankin and Connick, as well as Seventh Circuit precedent. The court reasoned:
Defendants reasonably expected that some students would be apprehensive about asking Craig for help given his views on women. For example, Craig asserts that women do not succeed in relationships because of their tendency to “act based on emotion alone instead of emotion plus intellect.” Is it unreasonable to think a female Rich Cen‐ tral student who learned that Craig believed women are not inclined to rational thought may decide against visiting his office for career or other advice? We think not. Nor would it be unreasonable to believe a high school girl would keep her relationship problems to herself knowing that Craig stressed in his book the importance of a woman’s sexual “submissiveness” to her male partner. These portions of “It’s Her Fault” addressed subjects inextricably related to issues for which a female high school student may seek the advice of her guidance counselor. Defendants reasonably concluded that some of these students, knowing Craig’s views on these topics, would decline to ask for his help.
It concluded that the school's interests in "protecting the integrity of counseling services at Rich Central dwarfed Craig’s interest in publishing" his book, “It’s Her Fault.” It stated that although "Craig’s book touched on a matter of public concern, his view of relationships is not the sort of topic of expression that Defendants would require a compelling reason to restrict."
Wednesday, December 4, 2013
In its opinion in Minority Television Project v. FCC, the en banc Ninth Circuit upheld the constitutionality of 47 U.S.C. § 399b which prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates.
Writing for the majority, Judge McKeown began by mentioning the showcase programming of public television: "Masterpiece Theater, PBS NewsHour, children’s programs such as Sesame Street and Curious George." In recognition of the "follow the money" reality, Congress recognized that advertising would "change the character of public broadcast programming and undermine the intended distinction between commercial and noncommercial broadcasting." The First Amendment challenge by Minority Television Project, a public television broadcaster, was mounted after it was fined by the FCC for violating the ban on advertising through its "underwriting announcements." While the district judge upheld the statute, a divided Ninth Circuit panel upheld only the ban on for-profit advertising, while two judges issued separate opinions striking down the statute’s ban on issue and political advertising
The en banc majority upheld the constitutionality of the entirety of the bans, applying intermediate First Amendment scrutiny from FCC v. League of Women Voters, 468 U.S. 364 (1984) that nevertheless requires that the restrictions be "narrowly tailored" to further a substantial government interest, as well as a consideration of the sufficiency of less restrictive means, but do fall short of the strict scrutiny standard advanced by Minority Television Project. Applying intermediate scrutiny, the en banc majority held that legislative record was "ample" to support the statute and that the "case 'does not present a close call' requiring us to elaborate on what evidentiary burden Congress bears in enacting a law that implicates First Amendment rights." The majority stated that "substantial evidence before Congress supported the conclusion that the advertising prohibited by § 399b posed a threat to the noncommercial, educational nature of NCE [noncommercial educational] programming and that the additional evidence bears out Congress’s predictive judgment in enacting § 399b." For the majority, "Poking holes in the congressional evidence is hardly a substitute for the scrutiny required of this court."
The most contentious disagreement involved the ban on political and issue advertising. The majority held that Congressional findings regarding commercial advertising included political and issue advertising:
Congress determined that the “insulation of program control and content from the influence of special interests—be they commercial, political or religious”—was necessary. See H.R. Rep. No. 97-82, at 16 (1981). The government’s evidence regarding the enormous sums spent on political advertising confirms Congress’s prediction that, like advertising by for- profit entities, political advertising dollars have the power to distort programming decisions. In 2008 alone, political advertisers spent $2.2 billion. As the campaign season gets longer and longer, commercial television viewers are bombarded with political and issue advertising. Prohibiting only goods and services advertising and allowing issue and political advertising would have shifted incentives and left a gaping hole in § 399b’s protections.
While recognizing that political speech has a preferred place in First Amendment hierarchies of speech, the majority nevertheless found that the Congressional consideration of "commercialization" extended to this type of speech, as well as crediting Congressional consideration of an "experiment" to allow some time, place, and manner restrictions and the Congressional rejection of that option.
Judge Callahan wrote a very brief concurring and dissenting opinion, rejecting the constitutionality of the ban on the political and issues advertising.
Chief Judge Kozinski, joined by Judge Noonan, wrote a lengthy dissenting opinion, arguing that all of the advertising bans should be held unconstitutional. This opinion interestingly begins with what one might call its own sort of advertisement for American exceptionalism and the firstness of the First Amendment:
The United States stands alone in our commitment to freedom of speech. No other nation—not even freedom-loving countries like Canada, England, Australia, New Zealand and Israel—has protections of free speech and free press like those enshrined in the First Amendment. These aren’t dead words on paper written two centuries ago; they live. In many ways, the First Amendment is America. We would be a very different nation but for the constant buffeting of our public and private institutions by a maelstrom of words and ideas, “uninhibited, robust, and wide-open.”
The dissent criticizes the majority's defence to Congress, including discussion from the FCC regarding the experiment, although the majority's opinion, in footnote 10, stated it was "surprised by the dissent’s effort to undermine the Commission’s recommendation with selective excerpts from the Commission’s report." The dissent also criticized the intermediate standard of review as being problematical and unpredictable as to outcome.
Should Minority Television Project seek certiorari, one might wonder whether Justice Sotomayor's appearance on Sesame Street will matter.
Thursday, November 28, 2013
UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?
Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple? Does it make any difference that he couple have entered into a civil partnership?
The main opinion, authored by the twelve justice Court's only woman member, Lady Hale, affirms the lower court's finding that the same-sex couple's equality claims must prevail. While the decision is unanimous, some justices wrote separately because of differing on the rationale, including whether the discrimination should be deemed direct or indirect. These differences resulted from highlighting sexual orientation or highlighting marital status, with the added wrinkle of civil partnership being equivalent to marriage.
But clearly, the Court held, there was discrimination. And further, the Court held, that discrimination cannot be justified. The Court construed the statutory frameworks prohibiting discrimination based on both sexual orientation and religious belief, and then turned to article 9 of the European Convention on Human Rights, which guarantees the ability to manifest religious beliefs in “worship, teaching, practice and observance." But Article 9 also provides:
Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
This "rights of others" qualification is key to the Lady Hale's analysis, as these rights include rights under "ordinary law," including UK's regulatory framework that prohibits discrimination.
But, as Lady Hale makes clear, it is not a matter of sexual orientation discrimination trumping religious discrimination. Instead:
If Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today.
While the UK Supreme Court did cite cases from other jurisdictions, it sometimes noted that they occurred in a "different constitutional context."
In the United States, the constitutional context pits First Amendment rights of free exercise of religion against Equal Protection rights based on sexual orientation. When the sexual orientation rights of equality have been statutory, the United States Supreme Court has clearly held that the First Amendment interests prevail, as in Boy Scouts of America v. Dale (2000) and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995). However, with the constitutional recognition afforded same-sex marriage last term in United States v. Windsor under the equal protection component of the Fifth Amendment in the challenge to DOMA (Defense of Marriage Act), the legal landscape has altered.
Thus, it may be that the US Supreme Court will soon be confronting an issue quite similar to the one that the UK Supreme Court in Bull v. Hall. One possibility is Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer and in which Elane Photography has filed a petition for writ of certiorari.
Interestingly, the petition relies upon the compelled speech doctrine, arguing that requiring Elane Photography, a wedding photographer to photograph a same-sex wedding would be to require her to "create expressive images" that conveyed messages that conflict with her religious beliefs and therefore violates the First Amendment doctrine of compelled speech. The petition heavily relies upon Wooley v. Maynard (19977) the New Hampshire "leave free or die" license plate case. As Lyle Denniston notes, the case "does not ask the Court to rule on any right of gays and lesbians to marry" and NM presently does not either prohibit or allow same-sex marriage.
Given the US Supreme Court's highly discretionary grant of certiorari and the lack of a developed conflict in the circuits on this issue, it seems more likely than not that the US Supreme Court will refuse to hear Elane Photography. But given the probabilities of recurrence of the issue, the US Supreme Court will most likely be confronting this issue sometime soon.
Sunday, November 24, 2013
Judge Barbara Crabb (pictured) of the Western District of Wisconsin concluded in her opinion in Freedom from Religion Foundation v. Lew that 26 U.S.C. § 107(2) violates the establishment clause of the First Amendment to the United States Constitution.
The statute at issue provides that:
In the case of a minister of the gospel, gross income does not include—(1) the rental value of a home furnished to him as part of his compensation; or
(2) the rental allowance paid to him as part of his compensation, to the extent used by him to rent or provide a home and to the extent such allowance does not exceed the fair rental value of the home, including furnishings and appurtenances such as a garage, plus the cost of utilities.
I am not aware of any decision in which a majority of the Supreme Court considered whether a claim under the establishment clause would be defeated if the particular benefit at issue were granted to atheists, but still excluded secular groups. At least in the context of this case, there is a plausible argument that the claim would survive. . . .
Regardless, to the extent defendants mean to argue that § 107(2) is constitutional because of an abstract possibility that an atheist could qualify as a minister of the gospel, I disagree. . . .
In this case, no reasonable construction of § 107 would include atheists. In the concurring opinion in Texas Monthly that defendants cite, Justice Blackmun rejected as “facially implausible” an argument that atheistic literature could be included as part of “[p]eriodicals that are published or distributed by a religious faith and that consist wholly of writings promulgating the teaching of the faith and books that consist wholly of writings sacred to a religious faith.” Texas Monthly, 489 U.S. at 29 (Blackmun, J., concurring in the judgment). Defendants do not explain why they believe interpreting § 107 to include atheists is any more plausible. Hearings Before the H. Comm. on Ways & Means, 83rd Cong. at 1574-75 (sponsor of § 107(2) stating that purpose of law was to help ministers who are “fight[ing] against” a “godless and anti-religious world movement”).
The issue of whether §107 would plausibly cover atheists was also important to Judge Crabb's conclusion that the plaintiff organization and individual plaintiffs had standing.
Judge Crabb's opinion centers the exclusion of nonbelievers as well as the Lemon test in a way that some current Establishment Clause litigation fails to do, such as the recent oral argument in Town of Greece v. Galloway. The constitutionality of government preference for religion over "irreligion" is an unsettled contention at the heart of Establishment Clause jurisprudence. It ensures the decision will be appealed to the Seventh Circuit.
Sunday, November 17, 2013
The issue of religious freedom for secular for-profit corporations, whether under the statutory scheme of Religious Freedom Restoration Act or the First Amendment, in the context of the ACA's so-called contraceptive mandate is a contentious and complicated one. Here's an overview of (and reaction to) the issue and cases; after which the Seventh Circuit (again) rendered an opinion.
For those teaching, writing, or thinking about the issues, Judge Ilana Rovner (pictured), dissenting in the Seventh Circuit's opinion in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, offers three provocative hypotheticals. [For those interested in more about Judge Rovner, there's an interesting interview from the Illinois Supreme Court Commission on Professionalism in a brief video available here].
Rovner's hypotheticals draw on the ACA as well as other federal laws and are especially helpful because they provide the statutory schemes as well as the facts.
In the first, an employee has ALS, commonly known as Lou Gehrig’s Disease, and has been accepted into a clinical trial testing the effectiveness of an embryonic stem-cell therapy on ALS. The employer software company/owner's plan would cover only the costs of the employee's routine care associated with the stem cell therapy, and not the costs of the stem cell therapy itself, but the employer nevertheless believes that by covering routine care, the company plan would be facilitating his participation in a practice to which he objects on religious grounds.
In the second, the employer corporation's sole owner is "a life-long member of the Church of Christ, Scientist. Christian Science dogma postulates that illness is an illusion or false belief that can only be addressed through prayer which realigns one’s soul with God." The owner believes that "his company’s compliance with the ACA’s mandate to cover traditional medical care would be a violation of his religious principles."
In the third hypothetical, the employer corporation's owners condemn same-sex marriage and homosexuality as part of their religious views. One of their employees seeks time off under the Family and Medical Leave Act to attend, with his husband, the birth of their child through a surrogate arrangement. The employers not only refuse the unpaid leave under the FLMA, they terminate him, because neither the owners nor their company can in any way recognize or facilitate such an immoral arrangement against their religious beliefs.
These hypotheticals would make a terrific in class discussion. They appear on pages 68 - 76 of the opinion; and for convenience, without accompanying footnotes, below.
November 17, 2013 in Cases and Case Materials, First Amendment, Interpretation, Medical Decisions, Opinion Analysis, Recent Cases, Religion, Reproductive Rights, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Saturday, November 9, 2013
Federal district judge Freda Wolfson has upheld the constitutionality of New Jersey A3371 banning "sexual orientation change efforts" (SOCE), also known as sexual conversion therapy, on minors in her extensive opinion in King v. Christie.
Recall that Chris Christie - - - now the recently re-elected Governor of New Jersey - - - signed the bill into law last August, accompanied by a signing statement, and that the plaintiffs, including Tara King, a licensed professional counselor, as well as National Association for Research and Therapy of Homosexuality (“NARTH”) and American Association of Christian Counselors (“AACC”), argued that the statute violates their First Amendment rights of free speech, rights of their clients to "receive information," and free exercise of religion, as well as clients' parental due process rights under the Fourteenth Amendment, in addition to concomitant rights under the New Jersey state constitution.
The district judge found that the First Amendment challenges raised by the plaintiffs were the most serious ones, but also found that the statute restricts neither speech nor religious expression, and that the statute survived rational basis scrutiny.
Regarding speech, Judge Wolfson concluded that on its face, the statute plainly regulates conduct, quoting the statutory language:
“shall not engage in sexual orientation change efforts,” and further defines “‘sexual orientation change efforts” as “the practice of seeking to change a person’s sexual orientation.”
(emphasis in opinion). She extensively discussed the Ninth Circuit's opinion in Pickup v. Brown, upholding a smiliar California statute prohibiting SOCE. She briefly distinguished the federal district judge's opinion in Wollschlaeger v. Farmer declaring unconstitutional Florida's prohibition of physicians asking patients about gun ownership, noting that unlike the Florida law, the NJ statute "does not seek to regulate the conveying of information, only the application of a particular therapeutic method." She also confronted the implications of the plaintiffs' arguments:
there is a more fundamental problem with Plaintiffs’ argument, because taken to its logical end, it would mean that any regulation of professional counseling necessarily implicates fundamental First Amendment free speech rights, and therefore would need to withstand heightened scrutiny to be permissible. Such a result runs counter to the longstanding principle that a state generally may enact laws rationally regulating professionals, including those providing medicine and mental health services.
She likewise rejected the argument that there was sufficient expressive conduct to merit an analysis under the intermediate scrutiny standard of O'Brien, finding instead that rational basis was the appropriate standard and switching to a due process analysis, having "rejected Plaintiffs' First Amendment free speech challenge." (footnote 22). Not surprisingly, she finds this standard easily satisfied. Relatedly, she easily concludes that the challenge to the term "sexual orientation" as vague and the challenge to the statute as overbroad are both without merit.
As to the free exercise of religion challenge, Judge Wolfson concludes that the statute is a neutral one of general applicability and rejects the argument that the statute's exceptions create a disproportionate impact on religious expression. Again, she concludes that rational basis applies and for the same rationales discussed in the free speech analysis, the statute easily satisfies the standard.
In other matters, the judge found that the plaintiffs did not have sufficient Article III standing to raise the injuries to their minor clients and their parents. On the other hand, the judge granted intervernor status to Garden State Equality.
The judge's opinion is a well reasoned one, and is certainly buoyed by the Ninth Circuit's similar conclusion.
The plaintiffs filed a Notice of Appeal immediately, so the matter is already on its way to the Third Circuit.
[image: Diagram of the Brain circa 1300 via]
November 9, 2013 in Due Process (Substantive), Family, First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Religion, Sexual Orientation, Speech, Standing | Permalink | Comments (0) | TrackBack (0)
Friday, November 8, 2013
In its opinions in excess of 150 pages in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, a divided panel of the Seventh Circuit has (again) entered the fray regarding the claim of secular for-profit corporations that rights of religious freedom have been infringed by the (PP)ACA's so-called contraception mandate. We've discussed the complicated landscape here, and specific cases such as the divided DC Circuit's opinion in Gilardi v. HHS, by the Sixth Circuit in Eden Foods v. Sebelius and Autocam Corp. v. Sebelius, by the divided Third Circuit in Conestoga Wood Specialties Corp. v. Secretary of HHS, and, of course, in the divided en banc opinion of the Tenth Circuit in Hobby Lobby, presently before the United States Supreme Court on a petition for writ of certiorari.
In this consolidated opinion in Korte and Grote, the majority of the Seventh Circuit panel - - - in an opinion authored by Judge Diane Sykes and joined by Judge Joel Flaum - - - reiterated its previous views and its previous divide - - - with Judge Ilana Diamond Rovner again dissenting - - - now that the "appeals have now been briefed and argued and are ready for decision."
These cases—two among many currently pending in courts around the country—raise important questions about whether business owners and their closely held corporations may assert a religious objection to the contraception mandate and whether forcing them to provide this coverage substan- tially burdens their religious-exercise rights. We hold that the plaintiffs—the business owners and their companies—may challenge the mandate. We further hold that compelling them to cover these services substantially burdens their religious- exercise rights. Under RFRA the government must justify the burden under the standard of strict scrutiny. So far it has not done so, and we doubt that it can. Because the RFRA claims are very likely to succeed and the balance of harms favors protect- ing the religious-liberty rights of the plaintiffs, we reverse and remand with instructions to enter preliminary injunctions barring enforcement of the mandate against them.
(emphasis in original).
Korte & Luite Johan Contractors, Inc., is general contractor in Illinois, employing about 90 full-time employees, 70 of whom belong to a union that sponsors their health-insurance plan, and 87% of the stock is owned by Cyril and Jane Korte, who describe themselves as devout Roman Catholics. Interestingly, as the opinion relates, in August 2012, the
Kortes discovered that their then-existing health plan covered sterilization and contraception—coverage that they did not realize they were carrying. Because providing this coverage conflicts with their religious convictions, they began to investigate alternative health-care plans with the intention of terminating their existing plan and substituting one that conforms to the requirements of their faith.
But, they now argue, the ACA's contraception mandate stands in their way. Also interestingly, although not in the court's opinion, the Korte company has been awarded the contract to renovate the Illinois Supreme Court building, in a contract for more than 7 million dollars.
The Grotes include six individual plaintiffs who own and manage Grote Industries, Inc., a manufacturer of vehicle safety systems headquartered in Indiana, having 1,148 full-time employees at various locations, including 464 in the United States, and providing a health-care plan that is self-insured.
The opinions and analysis are extensive, but they provide little that is different from their previous opinions or from other courts' opinions, with the exception of dissenting Judge Rovner's hypotheticals discussed below. The majority's analysis on the individual plaintiffs focuses on standing and there is no resort to the "pass through" test that some other courts have used. Regarding RFRA, the majority relies on the Dictionary Act's definition of "person," and concludes that covering corporations within RFRA is not a "poor fit," indeed,
A corporation is just a special form of organizational association. No one doubts that organizational associations can engage in religious practice. The government accepts that some corporations—religious nonprofits—have religious-exercise rights under both RFRA and the Free-Exercise Clause.
The majority uses a series of First Amendment Free Exercise Clause cases, including Sherbert v. Verner, the Seventh Day Adventist employee seeking workers' compensation benefits, and Braunfeld v. Brown, the "Jewish merchants" challenging a Sunday-closing law, to conclude that such" cases show that far from categorically excluding profit-seekers from the scope of the free-exercise right, the Supreme Court has considered their claims on the merits, granting exemptions in some and not others based on the compelling-interest test."
Dissenting, Judge Rovner contends that while her "esteemed colleagues have made the best case possible for the notion that the contraception mandate interferes with the plaintiffs’ free exercise rights," she believes that the majority's "holding and rationale represent an unprecedented and unwarranted re-conception of both what the free exercise of religion entails and what constitutes a substantial burden on that exercise," because the majority "extends a highly personal right to a secular corporation, a man-made legal fiction that has no conscience enabling belief or worship." She continues regarding the substantial burden - - - or what she sees as a lack therefof - - - and notes that the majority "permits the plaintiffs to invoke their free exercise rights offensively rather than defensively, in a way that circumscribes the rights Congress has given to employees, by permitting the corporate employers to rewrite the terms of the statutorily- mandated health plans they provide to their employees."
Judge Rovner's opinion is most provocative - - - and probably most useful for Constitutional Law Professors - - - in providing three hypotheticals worth considering. [Update: discussion of hypotheticals here].
Friday, November 1, 2013
In a divided opinion including two senior judges, the Court of Appeals for the District of Columbia Circuit in Gilardi v. HHS entered the fray regarding corporate rights under RFRA and the First Amendment regarding the requirement that an employer include contraceptive coverage in its health care insurance. Recall that just last week, the Sixth Circuit denied the claim of Eden Foods, following the decision of another panel of the circuit in Autocam Corp. v. Sebelius, decided in September, that agreed with the divided panel of the Third Circuit's July opinion in Conestoga Wood Specialties that a for-profit secular corporation cannot assert a claim to religious freedom under RFRA, the Religious Freedom Restoration Act. This is contrary to the holding of the divided en banc Tenth Circuit's June majority opinion in Hobby Lobby v. Sebelius presently before the United States Supreme Court on a petition for writ of certiorari filed by the Solicitor General on behalf of Sebelius.
In Gilardi, the divisions by the DC Circuit judges - - - Janice Rogers Brown, Harry Edwards, and A. Raymond Randolph - - - reflect the divisions expressed in the other opinions. Judge Brown's main opinion is joined in various parts by only one of the other two judges, both of whom wrote separate opinions. Judge Randolph's opinion is a few pages, while Judge Edwards' opinion, concurring in part and dissenting in part is longer than the majority opinion.
The case involves Francis and Philip Gilardi, adherents of Catholicism, who oppose contraception for women. They are owners of Freshway Foods and Freshway Logistics, closely-held corporations that employ approximately 400 employees. Important for the analysis, the corporations "have elected to be taxed under Subchapter S of the Internal Revenue Code." Judge Randolph's brief opinion has a good explication of the relevance of Subchapter S.
The judges, excepting Randolph, first decide that the corporations do not possess a right of religious freedom. The majority finds that RFRA's "person" language does not solve the issue, and turns to First Amendment doctrine. The court notes that perhaps the "constitutional arithmetic" of "Citizens United plus the Free Exercise Clause equal a corporate free exercise right" might "ultimately prevail, but "for now" there is "no basis for concluding a secular organization can exercise religion," thus agreeing with cases such as Eden Foods. In the brief concurring opinion, Judge Randolph states this issue need not have been addressed.
This "leaves the Gilardis," as the court phrases it, and finds that they suffer an injury "separate and distinct" from the corporation. The majority - - this time without the agreement of Judge Edwards - - - finds that the religious freedoms of the individual men are burdened under RFRA. It applies strict scrutiny, as required by RFRA, but interestingly quoting from Fisher, last Term's equal protection case involving racial classifications in affirmative action programs at the the University of Texas. The majority then rejects as compelling the government interests in safeguarding public health, protecting women's autonomy, or promoting gender equality, finding these interests both too broadly formulated and even if satisfactory, not being served by the least restrictive means. In short, the majority concludes, even without the contraceptive mandate, the "statutory scheme will not go to pieces."
Judge Edwards' lengthy opinion finds that while the Gilardis may be sincere, the legal claim that the mandate imposes a substantial burden on their individual rights of free exercise of religion because "their companies are required to provide health insurance that includes contraceptive services" is "specious." Judge Edwards argues that while the individuals may have Article II standing to pursue their claim, this does not mean that they have a valid one. Judge Edwards extensively rehearses the Supreme Court's free exercise doctrine, intertwined with RFRA, and discusses the burden on the Gilardis. In a paragraph that captures the disagreement over whether individuals are burdened by the acts of corporations, he argues:
Amici also contend that the difference between the Mandate and paying wages is akin to the difference between a person who opposes the death penalty being required to pay taxes that fund executions, and being required to “purchase the drugs for a lethal injection and personally deliver them to the facility where the execution will take place.” Br. of 28 Catholic Theologians and Ethicists at 19. The problem with this rather extraordinary example is that the Mandate does not require the Gilardis to have nearly this degree of personal involvement in providing contraceptives. The Mandate does not require the Gilardis to transfer funds from Freshway’s accounts directly to the manufacturers or retailers of contraception. Nor are the companies required to deliver or distribute contraception to employees. Under the Employee Retirement Income Security Act, 29 U.S.C. § 1132(d)(1), Freshway is a distinct legal entity from its self-insured group health plan. The plan is operated by a third-party administrator, and, pursuant to health privacy regulations, the Gilardis are actually prohibited from being informed whether individual employees purchase contraceptive products, or about any other information regarding employees’ health care decisions. See Br. of Americans United for Separation of Church and State, et al., at 29-30 (citing 45 C.F.R. § 164.508; 45 C.F.R. § 164.510). Moreover, the Gilardis are free to procure Mandate-compliant coverage for their employees through an entirely independent, third-party insurance carrier, rather than administering their own group health plan. Id. This is a far cry from personally purchasing contraceptives and delivering them to employees.
Further, Judge Edwards would find that even if there were a substantial burden, there are compelling governmental interests supporting the contraceptive mandate provisions, including "promoting public health, welfare, and gender equality." He would find the exemptions narrow and, analogizing to the Social Security tax upheld by the United States Supreme Court, the scheme cannot function if persons are allowed to opt-out because money is being spent in a manner that violates their religious beliefs.
Because the district court found as a matter of law that the Gilardis did not have a substantial likelihood of prevailing on the merits, it denied the prelimiary injunction. Having reversed that conclusion of law, the majority remands for a determination of the other considerations for a preliminary injunction.
But most certainly the Gilardis case - - - or this issue - - - will not simply end there. It may be determined by what the Court does in Hobby Lobby, even as Freshway Foods is distinguished by being a different type of corporation.
Thursday, October 31, 2013
A Fifth Circuit panel has entered its opinion staying the injunction pending a full consideration of the merits, concluding that there is "a substantial likelihood that the State will prevail in itsargument that Planned Parenthood failed to establish an undue burden on women seeking abortions or that the hospital-admitting-privileges requirement creates a substantial obstacle in the path of a woman seeking an abortion." The panel also concluded that "the State has made a strong showing of likelihood of success on the merits" on its appeal on the partial injunction pertaining to medication abortions.
As to mandated hospital admitting provisions, the panel observed that the district judge's finding that the requirement failed a rational basis standard "overlooks substantial interests of the State in regulating the medical profession and the State’s interest in “‘protecting the integrity and ethics of the medical profession." Further, the panel held that the district judge's finding of an undue burden did not apply to "a large fraction" of the women seeking abortions in Texas.
Regarding the partial injunction on medical abortions, the Fifth Circuit panel found it is was overbroad, except in a single respect in which the injunction will remain in effect:
the district court’s injunction continues to apply pending appeal with respect to a mother who is 50 to 63 days from her last menstrual period if the physician who is to perform an abortion procedure on the mother has exercised appropriate medical judgment and determined that, due to a physical abnormality or preexisting condition of the mother, a surgical abortion is not a safe and medically sound option for her.
Otherwise, HB 2, the subject of the well-publicized filibuster by state senator Wendy Davis in now in effect.
Monday, October 28, 2013
In his opinion in Planned Parenthood of Greater Texas v. Abbott, Judge Lee Yeakel has enjoined portions of Texas HB 2, passed in July (despite a well-publicized filibuster by state senator Wendy Davis) and slated to become effective October 29, 2013.
The judge found unconstitutional the "admitting privileges provision" that provided:
A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services
He concluded that the provision placed a substantial obstacle in the path of a woman seeking an abortion and failed the rational basis test. As to the substantial obstacle, the judge noted that hospital admitting privileges for physicians performing abortions can be difficult to obtain; for example a physician performing low-risk abortions may simply not have sufficient surgeries to qualify. Moreover, many physicians are not within the 30 mile limit. Regarding a rational relationship, the judge found that hospital emergency rooms admitting a patient and hospitals subsequently treating her do not disfavor a patient whose physician does not have admitting privileges.
Judge Yeakel did not declare unconstitutional HB 2's revision of physician prescription of abortion-inducing medications such as RU-486. HB 2 essentially mandates following the FDA protocol, a protocol that is not usually followed and about which there is substantial disagreement. Judge Yeakel, however, found that HB 2 did not impose an undue burden because the physician could perform a surgical abortion. An exception, however, must be added if the physician determines that the health or life of the woman is at stake.
Texas is reportedly already appealing the decision. It is not the first time that Judge Lee (Earl Leroy) Yeakel has rendered an opinion declaring portions of a Texas statute restricting abortion unconstitutional and been appealed. Last year in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, a panel of the Fifth Circuit reversed Judge Yeakel's preliminary injunction involving a Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.
October 28, 2013 in Abortion, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Medical Decisions, Opinion Analysis, Reproductive Rights, Standing | Permalink | Comments (0) | TrackBack (0)
Friday, October 25, 2013
A few days after hearing oral argument, a Second Circuit panel has reversed the district judge and entered an order enjoining the enforcement of New York Election Law §14-114(8) and §14-126(2) in its 14 page unanimous opinion in New York Progress and Protection PAC (NYPPP) v. Walsh.
NYPPP challenged New York's $150,000 individual contribution limit to a PAC alleging that it has a "donor waiting to contribute $200,00 to its cause" and that the contribution limit violates NYPPP's "core First Amendment right to advocate in favor of Joseph Lhota in the upcoming New York mayoral election." According to the NY Times, that "donor" is none other than Alabama businessman, Shaun McCutcheon - - - the plaintiff in the campaign finance challenge McCutcheon v. FEC heard by the United States Supreme Court earlier this month as we discussed here.
While stating that the court expressed "no opinion on the ultimate outcome," it did hold that there was a substantial likelihood on the merits, citing Citizens United v. FEC for the proposition that the government "has no anti-corruption interest in limiting independent expenditures." The panel rejected the district court's finding that the "so-called independent expenditure only committees" have "only one purpose - advancing a single candidacy at a single point in time - - - " and are thus "not truly independent as a matter of law." Instead, the panel concluded that NYCPP was independent and its choices "irrelevant." Thus, a donor to an independent expenditure PAC such as NYPCCC is "even further removed from the candidate and may not be limited in his ability to contribute to such committees." The panel noted that this issue has been resolved "consistently" by all the federal courts that have considered it.
Balancing the equities, the panel easily concluded that the hardship faced by NYPPP and its donors was significant: "Every sum that a donor is forbidden to contribute to NYPPP beacuse of this statute reduces constitutionally protected polictical speech."
The Second Circuit's injunction against the enforcement of the NY campaign finance statutes was criticized by the rival of Republican Joe Lhota: a spokesperson for Democrat Bill deBlasio, reportedly stated the ruling would "empower the right-wing billionaires, like the Koch Brothers, and Tea Party groups who support Joe Lhota to drown out the voices of New Yorkers."
The race between the mayoral candidates remains heated, if not especially close so far. The question is whether an influx of money can change the outcome on November 5.
Meanwhile, watch the most recent debate between the candidates:
Thursday, October 24, 2013
The Fourth Circuit ruled in Colon Health Centers of America v. Hazel that two out-of-state medical providers alleged a sufficient challenge to Virginia's "certificate of need" requirement to survive a motion to dismiss. The court remanded the case for fact-finding on the dormant Commerce Clause question.
The court suggested that the requirement wouldn't ultimately survive. The case, when it comes back to the Fourth Circuit after remand, may be significant, if, as the concurrence says, "in Virginia, and throughout much of the country, state certificate of need regimens continue to grow and now regulate an enormous segment of the national economy." Op. at 27-28.
Virginia's certificate-of-need program requires medical providers that seek to launch a medical enterprise in the state to show a public need for the service that it seeks to offer. (Judge Wilson puts a finer point on it in dissent: "Plaintiffs would like to render medical services in Virginia with equipment they cannot utilize without first proving to the Commonwealth that the competition they bring with them will not harm established local health care providers.") The plaintiffs, two corporations that provide colon screening and treatment, alleged that the program violates the dormant Commerce Clause (among other constitutional claims, rejected by both the district court and the Fourth Circuit).
The court ruled that the plaintiffs alleged sufficient facts to survive a motion to dismiss and to trigger discovery and fact-investigation by the trial court. The court gave unusually specific directions to the trial court to find facts on the program's discrimination against interstate commerce in purpose and effect, recognizing that this fact investigation would also spill over into the lower-level balancing test under the dormant Commerce Clause for state laws that create an undue burden on interstate commerce.
Wednesday, October 23, 2013
The First Amendment includes a right of public (and press) access to trials. But what is a "trial"? Or, as the Third Circuit considered in its opinion in Delaware Coalition for Open Government v. Strine, is there a right of public access to a state sponsored arbitration program. By a divided panel - - - with a separate opinion from each of the three judges - - - the majority held that the First Amendment requires public access to state arbitration proceedings.
While the majority affirmed the district judge, the appellate panel disagreed with the standard the district judge applied. The correct standard, according to the apellate panel, is the "experience and logic" test. The test derives from cases applying the open access to a trial principle that the United States Supreme Court enunicated in Richmond Newspapers v. Virginia in 1980, including Press Enterprise v. Superior Court (II), in 1986, considering whether preliminary criminal hearings must be open to the public. Thus, quoting from Press Enterprise II, as the majority opinion by Judge Dolores Sloviter phrased it:
A proceeding qualifies for the First Amendment right of public access when “there has been a tradition of accessibility” to that kind of proceeding, and when “access plays a significant positive role in the functioning of the particular process in question.”
The history prong - - - asking whether there is a tradition of accessibility - - - rests upon a determination of the "kind" of proceeding in question. Here, the parties disagreed whether the focus should be on "civil trials" or "arbitrations": the court provided an in-depth discussion of both. The civil trial discussion traversed familiar ground, with the easy conclusion that civil trials and courtrooms are generally open to the public. The arbitration discussion began with a mention of English arbitrations in the twelfth century, concluding with a finding that the "history of arbitrations reveals a mixed record of openness." But, the court continued, the history shows that "arbitrations with non-state action in private venues tends to be closed." This is distinct from the Delaware scheme at issue, "a binding arbitration before a [state] judge that takes place in a courtroom," which is more like a usual civil trial.
On the logic prong, not surprisingly given the majority's discussion of history, public access was deemed to play a significant positive role. Judge Sloviter's opinion revealed a pointed disagreement with Judge Jane Roth's dissent:
I agree with Judge Roth on the virtues of arbitration. I cannot help but question why the Delaware scheme limits those virtues to litigants whose disputes involve an amount in controversy of at least a million dollars, and neither of whom is a consumer. One wonders why the numerous advantages set forth in Judge Roth’s dissenting opinion (which apparently motivated the Delaware legislature) should not also be available to businesspersons with less than a million dollars in dispute. I see no explanation in Judge Roth’s dissent for the limitation to rich businesspersons.
In her dissent, Judge Roth states that she believes that I do not appreciate the difference between adjudication and arbitration, i.e., “that a judge in a judicial proceeding derives her authority from the coercive power of the state, while a judge serving as an arbitrator derives her authority from the consent of the parties.” Indeed I do.
Delaware’s proceedings are conducted by Chancery Court judges, in Chancery Court during ordinary court hours, and yield judgments that are enforceable in the same way as judgments resulting from ordinary Chancery Court proceedings. Delaware’s proceedings derive a great deal of legitimacy and authority from the state. They would be far less attractive without their association with the state. Therefore, the interests of the state and the public in openness must be given weight, not just the interests of rich businesspersons in confidentiality.
In his concurring opinion, Judge Julio Fuentes seeks to clarify that it is not the entire arbitration scheme that violates the First Amendment, but only the provision requiring the proceedings to be "confidential" and "not of public record" until they are appealed.
Thus, these high stakes commercial arbitrations allowed by Delaware law and performed by Delaware judges can continue - - - but they are no longer confidential. This certainly seems the correct outcome if the First Amendment access to "trials" has substantive meaning.
Judge Colleen Kollar-Kotelly (D.D.C.) dismissed a separation-of-powers challenge to the Consumer Financial Protection Bureau, an independent agency created by Dodd-Frank that's tasked with the responsibility for "ensuring that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive." (This case challenges the CFPB on separation-of-powers grounds. We most recently posted on the other challenge to the recess-appointed head of the CFPB here. The recess appointment question is heading to the Supreme Court in Noel Canning.)
But the order dismissing the case in the D.C. District didn't touch the merits, and the plaintiffs in the D.C. case will undoubtedly raise the same constitutional claims in the underlying enforcement action against them in the Central District of California.
The case, Morgan Drexen, Inc. v. CFPB, arose after the CFPB filed an enforcement action against Morgan Drexen in the Central District of California. Morgan Drexen and its "attorney-client" then filed for injunctive and declaratory relief in the D.C. District, seeking to halt the enforcement action in the Central District of California, arguing that the CFPB violates constitutional separation-of-powers principles. The result: two parallel cases in two different courts, one enforcement action and one facial challenge, challenging the CFPB on constitutional grounds.
Update: Morgan Drexen filed in the D.C. court before the CFPB filed its case in California.
But Judge Kollar-Kotelly didn't bite. Instead, the court ruled that injunctive and declaratory relief in the D.C. District would be inappropriate with the case pending in California--and that Morgan Drexen could obtain complete relief on its claim there. (The court said that ruling on the matter would frustrate both the final judgment rule (because Morgan Drexen could immediately appeal a D.C. District ruling on the merits, but not a ruling from the Central District of California denying a motion to dismiss on constitutional grounds) and the principle of constitutional avoidance (because the Central District of California could dodge the constitutional issues and rule on other grounds, but the D.C. District case would force the court to address the constitutional claims). The court also ruled that declaratory relief was inappropriate.
The court held that Morgan Drexen's "attorney-client" lacked standing, becuase she couldn't point to specific or generalized interference with the attorney-client privilege, or any other harm in the CFPB's investigation or enforcement action against Morgan Drexen.
The case ends this collateral piece of the litigation, but it doesn't end the enforcement action, still pending in the Central District of California. Morgan Drexen raises the same constitutional claims, and other statutory claims, as defenses in that case.
October 23, 2013 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 22, 2013
Georgia Supreme Court Upholds Constitutionality of Solicitation for Sodomy Statute - As "Narrowly Construed"
The Supreme Court of Georgia has upheld the constitutionality of the state statute criminalizing the solicitation of sodomy, even as it narrowly construed it, and even as it reversed the conviction based upon insufficiency of the evidence.
- Powell v. State (1998), limiting the construction of the sodomy statute pursuant to the "fundamental privacy rights under the Georgia Constitution" and
- Howard v. State (2000), upholding the sodomy solicitation statute against a free speech challenge by narrowly construing "the solitication of sodomy statute to only punish speech soliciting sodomy that is not protected by the Georgia Constitution's right to privacy."
Thus, the rule the court articulates is that
an individual violates the solicitation of sodomy statute if he (1) solicits another individual (2) to perform or submit to a sexual act involving the sex organs of one and the mouth or anus of the other and (3) such sexual act is to be performed (a) in public; (b) in exchange for money or anything of commercial value; (c) by force; or (d) by or with an individual who is incapable of giving legal consent to sexual activity.
Under this redefined "scope of the statute," the court then finds that Watson's actions did not satisfy any of the possibilities required by the third element: it was not to take place in public, it was not commercial, was not by force (although Watson was a police officer) and was not to a person incapable of giving consent (although solicited person was 17, the age of consent in the state is 16). In addition to reversing the conviction for solicitation of sodomy, the court reversed the conviction for violation of oath of office (of a police officer) that rested on the solicitation conviction.
While the Georgia Supreme Court's opinion is correct, redrafting a statute that remains "on the books" for prosecutors, defense counsel, and perhaps even judges who are less than diligent can result in a denial of justice.
The better course would have been to declare the solicitation of sodomy statute unconstitutional, requiring the legislature to do its job and pass a constitutional statute. This was the option followed by the New York Court of Appeals - - - New York's highest court - - - when presented by a similar issue in 1983. Having previously declared the state's sodomy statute unconstitutional in People v. Onofre (1980), when the court was presented with a challenge to a prosecution under the solicitation of sodomy statute, the court in People v. Uplinger stated:
The object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy. Inasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose. This statute, therefore, suffers the same deficiencies as did the consensual sodomy statute.
The United States Supreme Court granted certiorari in Uplinger, and then dismissed certiorari as improvidently granted, in part because of the intertwining of state and federal constitutional issues and in part because there was not a challenge to the underlying decision that held sodomy unconstitutional, six years before Bowers v. Hardwick, the case in which the United States Supreme Court upheld Georgia's sodomy statute.
October 22, 2013 in Criminal Procedure, Due Process (Substantive), Opinion Analysis, Sexual Orientation, Sexuality, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Friday, October 18, 2013
The New Jersey Supreme Court today, in its unanimous opinion in Garden State Equality v. Dow, denied a stay of a trial judge's order that same-sex marriages be allowed to begin in New Jersey on October 21. The trial judge's order was supported by an extensive opinion we discussed here. Essentially, the trial judge considered the NJ Supreme Court's previous ruling in Lewis v. Harris (2006), that led to civil unions, and reasoned that by declaring section 3 of DOMA unconstitutional, the United States Supreme Court in in Windsor v. United States had altered the legal landscape: NJ civil unions were now "unequal" because they would not be recognized by the federal government while marriages would be.
Interestingly, the State argued to the New Jersey Supreme Court that the federal government might - - - would? - - - recognize civil unions and thus the constitutional question remained unsettled. The NJ Supreme Court rightly rejected this contention as not based upon the language of Windsor or the realities of the manner in which the federal government was implementing Windsor. Additionally, the NJ Supreme Court rejected as inapplicable the State's argument that a statute is presumed constitutional, noting that the trial judge's order does not declare the civil union unonstitutional and that civil unions would still be available.
Having found that Garden State Equality was likely to prevail on the merits - - - a sure sign that the NJ Supreme court would so hold - - - the NJ Supreme Court considered the other equitable considerations regarding a stay, and found that none supported a stay.
Thus, in a unanimous 20 page opinion, the NJ Supreme Court has given a green light to same-sex marriages in the Garden State.
Friday, October 4, 2013
The Constitutional Court of South Africa's unanimous opinion in The Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another rendered on October 3, declares two aspects of the statutory rape and statutory sexual assault crimes unconstitutional.
Before the Court was the criminal scheme in which two adolescents who had a sexual encounter with each other could both be guilty of having statutorily raped the other. A "close in age" defense, when the parties' age difference was less than two years, was available in the statutory sexual assault situation, but not in the statutory rape situation in which "penetration" is required.
Written by Justice Sisi Khampepe, the opinion concludes that the criminal scheme violates the inherent right to dignity protected by §10 of the South African Constitution and the right to privacy protected by protected by §59 of the Constitution. The Court's opinion also found that the criminal sanctions violated § 28(2) of the Constitution that provides that “[a] child’s best interests are of paramount importance in every matter concerning the child.” It added that it is "trite that section 28(2) is both a self-standing right and a guiding principle in all matters affecting children, and that the criminal sanctions "exacerbate harm and risk to adolescents by undermining support structures, preventing adolescents from seeking help and potentially driving adolescent sexual behaviour underground."
Writing for the Court, Justice Khampepe resolves the required "means chosen" analysis thusly:
In my view, there are clearly less restrictive means available for achieving the stated purposes of the impugned provisions. First, assuming criminalisation could be shown to be an appropriate response to deter consensual sexual acts which carry the risks of psychological harm, pregnancy or the contraction of sexually transmitted diseases, a narrowly focussed provision would target only those acts where these are potential risks. I have already noted that sexual penetration as defined goes well beyond sexual intercourse. Similarly, most of the acts falling within the ambit of sexual violation are not carriers of the recited risks. Thus, in relation to the purposes of preventing adolescents from suffering psychological harm, contracting sexually transmitted diseases and becoming pregnant, the impugned provisions are clearly and impermissibly over-inclusive. In any event, I am highly doubtful that the introduction of criminal prohibitions could ever be shown to be a constitutionally sound means of preventing the occurrence of such risks as teenage pregnancy. Certainly the respondents have put forward neither argument nor evidence to convince me otherwise.
Additionally, the Court noted that criminalization included sex offender status and registration requirements.
Declaring the sections invalid "to the extent that they impose criminal liability on children under the age of 16 years," the Court then suspended the declaration for 18 months to allow Parliament to "correct the defects" in the legislation.
This is an important opinion for childrens' rights and sexual rights.
[image from The Teddy Bear Clinic via]
Tuesday, October 1, 2013
The First Circuit upheld bans in the City of Providence, Rhode Island, on accepting coupons or otherwise selling tobacco products at a discounted rate and on selling flavored tobacco products (other than cigarettes) against First Amendment and preemption challenges.
The City imposed the "Price Ordinance" and "Flavor Ordinance" in order to reduce youth tobacco use. Tobacco manufacturers and trade organizations sued, arguing that the Price Ordinance violated free speech and that both ordinances were preempted by federal and state law. The First Circuit rejected the challenges and upheld the ordinances in Nat'l Ass'n of Tobacco Outlets v. City of Providence.
The court ruled that the Price Ordinance didn't violate free speech, because the ordinance "'only precludes licensed tobacco retailers from offering what the Ordinance explicitly forbids them to do,' and that offers to engage in banned activity may be 'freely regulated by the government.'" Op. at 13-14 (quoting the district court).
The court also held that the Price Ordinance wasn't preempted by the Federal Cigarette Advertising and Labeling Act. The preemption provision of the Labeling Act says that "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes[,] the packages of which are labeled in conformity with the provisions of this chapter." But Congress enacted an exception in 2009 (in response to the Supreme Court's ruling in Lorrilard) that says that a state or locality "may enact statutes and promulgate regulations, based on smoking and health . . . imposing specific bans or restrictions on the time, place, and manner, but not content, of the advertising or promotion of any cigarettes."
The court ruled that the Price Ordinance met the content-neutrality requirement in the exception, because "it merely regulates certain types of price discounting and offers to engage in such price discounting," not the content relating to health claims or warnings. Moreover, the court held that the Price Ordinance met the time, place, manner requirement. The court said that minimum price regulations met that standard (they were common when Congress enacted the exception, and the plaintiffs conceded that they met the standard), and that the Price Ordinance is wasn't materially different.
The court held that the Flavor Ordinance wasn't preempted by federal Family Smoking Prevention and Tobacco Control Act. The preemption clause of that Act prohibits states and localities from regulating "tobacco product standards" and "good manufacturing standards." The Act also includes a savings clause, however, which allows regulations "relating to" the sale of tobacco products. The court said that the Flavor Ordinance fell within the savings clause, because it's not a blanket prohibition (which, the plaintiffs claimed, was more than merely "relating to") but instead allows the sale of flavored tobacco products in smoking bars.
Finally, the court ruled that the Price Ordinance wasn't field-preempted by Rhode Island law, because Rhode Island hasn't occupied the field. The court also said that the ordinances didn't violate the state constitution, which prohibits local licensing measures, because the ordinances aren't licensing measures (and because the plaintiffs didn't challenge the City's licensing measure).
In an unanimous opinion in Marceaux v. Lafayette City-Parish Consolidated Government, a panel of the Fifth Circuit reversed and remanded the district court judge’s protective order requiring that the Plaintiffs, current and former police officers in the City of Lafayette, Louisiana, “take down” their website - - - "http://www.realcopsvcraft.com" - - - used to communicate their cause. (Note: the website is presently not operable).
The underlying lawsuit by the Plaintiff police officers claims that the government Defendants sought to “prevent police officers from reporting certain civil rights abuses and corruption” within the police department and “retaliated against them for objecting to these practices.” The website had “an image of the Lafayette Police Chief, a party in this suit; excerpts of critical statements made in the media concerning the Lafayette PD Defendants; certain voice recordings of conversations between the Officers and members of the Lafayette Police Department; and other accounts of the Lafayette PD Defendants’ alleged failings.” The website seemed to have been once owned by the Plaintiffs’ attorneys, but they “eventually transferred ownership of the website” to one of the police officers.
The appellate court rightly viewed the district judge’s order to cease the website as a prior restraint, but sought to “balance the First Amendment rights of trial participants with our affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity,” citing the classic case of Sheppard v. Maxwell, 384 U.S. 333 (1966).
In this civil case, theFifth Circuit, however held that there was not sufficient evidence to "establish a nexus between the comments and the potential for prejudice to the jury venire through the entirety of the Website." The panel found that ordering a removal of the website was not sufficiently “narrowly tailored” to "excising maters with a sufficient potential for prejudice to warrant prior restraint."
But the panel stated it did not intend to "tie the hands of the district court" in addressing some of the content of the website. As to the specific content of certain recordings made by the Plaintiffs and placed on the website, the panel did discuss the "ethics" of this, noting both the that ABA position is that a lawyer who records the conversation of another does not necessarily violate the Model Rules of Professional Conduct AND that the recordings were not made by an attorney. Thus, the district judge's conclusion that the recordings had to be omitted from the website because they were "unethically obtained" was disapproved.
This rather brief - - - 12 page - - - opinion is well reasoned and would make an interesting class exercise for First Amendment, especially should the website "go live" again.
[image circa 1900 via]