Wednesday, September 17, 2014

Seventh Circuit Gives Wisconsin Voter ID a Go-Ahead

A three-judge panel of the Seventh Circuit last week threw a wrench into the November election in Wisconsin by staying an earlier district court ruling and injunction against the state's voter ID law, thus allowing the law to take effect immediately. The problem: some people have already cast absentee ballots without providing ID. More: some 11,800 voters requested absentee ballots before the panel's ruling, and thus under the assumption that they wouldn't have to provide ID. According to the Milwaukee Journal Sentinel, the director of the state Government Accountability Board is directing clerks to contact voters who requested an absentee ballot and tell them they need to provide an ID. He said that absentee ballots from voters who do not provide IDs won't be counted.

And this says nothing about the inevitable confusion at the polls.

There's another problem, the original one that sparked the litigation in the first place. That is, some 300,000 registered voters in Wisconsin, mostly poor and disproportionately racial minorities, lack a qualifying ID for voting, according to U.S. District Court Judge Lynn Adelman, who ruled in an exhaustive opinion last April that the law was unconstitutional and enjoined its enforcement. 

The Seventh Circuit panel order undoes Judge Adelman's injunction. The panel wrote that

[a]fter [Judge Adelman's] decision, the Supreme Court of Wisconsin revised the procedures to make it easier for persons who have difficulty affording any fees to obtain the birth certificates or other documentation needed under the law, or to have the need for documentation waived. This reduces the likelihood of irreparable injury . . . . The panel has concluded that the state's probability of success on the merits of this appeal is sufficiently great that the state should be allowed to implement its law, pending further order of this court.

While the panel's brief, one-page order is not a final ruling on the merits (that will come "in due course"), it presages the likely final merits ruling. 

But the most recent move by the plaintiffs may preempt that. The plaintiffs asked the full en banc Seventh Circuit to review the panel's decision. The full bench would have to act quickly, because the absentee election is already underway.

The Seventh Circuit is the same court that upheld Indiana's voter ID law, later also upheld by the Supreme Court in Crawford v. Marion County. (That law, according to the panel last week, is "materially identical" to Wisconsin's law). But Judge Posner (who was on the panel in the Indiana case, but not on the panel in the Wisconsin case) wrote last year that Indiana's voter ID law is "now widely regarded as a means of voter suppression rather than fraud prevention," suggesting that his opinion on voter ID changed. We may find out, if the full Seventh Circuit takes up the case.

 

September 17, 2014 in Cases and Case Materials, Elections and Voting, Equal Protection, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 16, 2014

RFRA Frustrates Child Labor Investigation

Senior Judge David Sam (C.D. Utah) ruled last week that the Religious Freedom Restoration Act prevented the court from compelling a FLDS Church member from answering questions related to a Labor Department investigation into child labor violations.

The ruling does not necessarily end the Labor Department investigation, though. Indeed, as Judge Sam wrote, DOL may be able to get the information from other sources.

The case arose when DOL sought an order compelling a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, or FLDS, to answer questions in the course of an investigation over the use of child labor in harvest activities at a pecan ranch in Hurricane, Utah. The FLDS member, Vernon Steed, invoked the First Amendment (free exercise), objecting to DOL's questions about the internal affairs of the FLDS Church. Judge Sam wrote that the claim sounded more like a Religious Freedom Restoration Act claim, and applied the higher level of scrutiny under the RFRA.

Judge Sam wrote first that a court order would substantially burden Steed's religious beliefs, because Steed said that he made a vow "not to discuss matters related to the internal affairs or organization of the [FLDS]," and that giving testimony would violate that vow. DOL challenged the sincerity of this belief, but Judge Sam, citing Hobby Lobby, didn't question it.

Judge Sam then wrote that DOL failed to satisfy the RFRA standard (again citing Hobby Lobby) because it had other ways to get the information it sought. For example, DOL could get information from the corporation or individuals who contracted to manage the ranch.

The ruling may not shut down the investigation, because DOL may, indeed, be able to get the information it needs from these other sources. But even if it can, the ruling underscores the heightened, strict scrutiny standard under the RFRA (over the lower, rational basis standard in Smith) , and illustrates its reach.

September 16, 2014 in Cases and Case Materials, First Amendment, Free Exercise Clause, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Monday, September 15, 2014

District Judge Finds Ohio's Prohibition of Campaign Falsehoods Violates First Amendment

In a 25 page opinion  replete with bolded underlined language, Judge Timothy Black held Ohio's statutory provisions prohibiting political false statements in Susan B. Anthony List v. Ohio Elections Commission.  

Recall that the United States Supreme Court heard the case as Susan B. Anthony List v. Driehaus  last Term and unanimously held that the case was ripe for review, reversing the Sixth Circuit.  The Court's opinion made little mention of the substantive First Amendment arguments, although at oral argument, counsel for the anti-abortion group Susan B. Anthony List, referred to the Ohio Election Commission as a "ministry of truth," a characterization later echoed by Justice Scalia. 

DP819156
"The Mouth of Truth"
woodcut by Lucas van Leyden circa 1514
via

Judge Black refrains from an explicit Orwellian allusion, but he expresses a similar sentiment: "we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth." (bold underlining in original).  However, Judge Black does resort to a phrase attributed to the character Frank Underwood in the television show House of Cards: “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.” (bold underlining in original).

Doctrinally, Judge Black relies on United States v. Alvarez in which the Court found the “Stolen Valor” statute unconstitutional, noting that the four Justice plurality held that strict scrutiny should apply and concluding that the federal statute was not necessary to achieve compelling interests and that less restrictive alternatives existed.

In considering the compelling government interest prong, Judge Black distinguished McIntyre v. Ohio Elections Committee (1995), the Court held unconstitutional a state statute prohibited the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature.  This "right to be anonymous" seemed to rest in part on the government interest in ensuring truthfulness, but as Judge Black writes:

However, in McIntyre, the Supreme Court did not describe the state interest in preventing false speech as “compelling” or even “substantial,” saying only that it was “legitimate” and has “special weight during election campaigns.”  McIntyre expressly refrained from any decision regarding the constitutionality of Ohio’s political false-statements laws. Moreover, Defendants cite no evidence that the false statements laws are “actually necessary” to achieve their interest. To be actually necessary, there must be a direct causal link between the restriction imposed and the injury to be prevented. Id.6 Here, instead, Defendants admit that “the consequences of deceptive false statements on elections are ... inherently difficult to quantify.”

[citations omitted].

 As to the narrowly tailored prong, Judge Black found that the statute chilled protected truthful speech, especially important in the political context.  Judge Black again emphasizes that the remedy for false speech is true speech, even as he notes that he is not convinced that "counterspeech will always expose lies," especially "in the wake of Citizens United."  Nevertheless, the problem of government-determined truth is problematical:

we certainly do not want the Government (i.e., the OEC) deciding what is political truth anyway, for fear that the Government might persecute those who criticize the Government or its leaders. Ultimately, whether or not it is possible to create a system by which impartial citizens could identify lies from the truth is unclear. What is crystal clear, however, is that Ohio’s statutes fail in this respect. The process is inherently flawed.

Judge Black issued both a preliminary and permanent injunction so that the decision is a "final, appealable Order."  Whether or not Ohio officials will choose to return to the Sixth Circuit remains to be seen.

September 15, 2014 in Campaign Finance, Courts and Judging, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, September 11, 2014

Third Circuit Upholds New Jersey's Ban on Sexual Conversion Therapy Against First Amendment Challenge

The Third Circuit has upheld the constitutionality of  New Jersey A3371 banning "sexual orientation change efforts" (SOCE), also known as sexual conversion therapy, on minors in its unanimous 74 page opinion in King v. Christie, Governor of New Jersey.  

The Third Circuit affirmed the district judge's extensive opinion from last November and reached the same conclusion as the Ninth Circuit did when reviewing a very similar California statute in  Pickup v. Brown, albeit on different grounds.

  640px-Nellie_Bly-Mad-House-07The Third Circuit's opinion by Judge D. Brooks Smith (and joined by Judges Vanaskie and Sloviter),  specifically disagrees with the Ninth Circuit's conclusion that SOCE is "conduct" rather than speech, a conclusion the New Jersey district judge essentially adopted.  The Third Circuit credits some of the reasoning of Ninth Circuit Judge Scannlain's "spirited dissent" from en banc review in Pickup as well the Supreme Court's Holder v. Humanitarian Law Project.  The Third Circuit rejected the principle that there is a sustainable line between utterances that are speech and those that are treatment:

consider a sophomore psychology major who tells a fellow student that he can reduce same- sex attractions by avoiding effeminate behaviors and developing a closer relationship with his father. Surely this advice is not “conduct” merely because it seeks to apply “principles” the sophomore recently learned in a behavioral psychology course. Yet it would be strange indeed to conclude that the same words, spoken with the same intent, somehow become “conduct” when the speaker is a licensed counselor.”  . . . .  As another example, a law student who tries to convince her friend to change his political orientation is assuredly “speaking” for purposes of the First Amendment, even if she uses particular rhetorical “methods” in the process.

Yet, the court concludes that although such utterances are speech, they are not "fully protected by the First Amendment" because they occur in a professional context.  In speech that occurs pursuant to the practice of a licensed profession - - - including fortune-tellers, a case on which the court relies - - - the speech is entitled to less protection. 

Nellie_Bly-Mad-House-15Precisely, it is entitled to the same level of protection as commercial speech, although importantly the Third Circuit is careful not to hold that this professional speech is commercial speech.   In applying the intermediate scrutiny type standard derived from commercial speech, the court finds that the statute "directly advances” the government’s interest in protecting clients from ineffective and/or harmful professional services, and is “not more extensive than necessary to serve that interest.”

The court's distinction between professional and nonprofessional speech, however, may  suffer from the same lack of bright lines that it finds with the conduct/speech distinction.  The court stresses that professional speech occurs in the context of "personalized services to client based on the professional's expert knowledge and judgement."  But in rejecting an argument that the New Jersey statute makes a viewpoint distinction, the court states that the statute

allows Plaintiffs to express this viewpoint, in the form of their personal opinion, to anyone they please, including their minor clients. What A3371 prevents Plaintiffs from doing is expressing this viewpoint in a very specific way—by actually rendering the professional services that they believe to be effective and beneficial.

The Third Circuit's opinion also considered the challenge that the statute was vague and overbroad, noting that the Plaintiffs themselves claim to specialize in the very practice they argue is not sufficiently defined.  Similarly, the Third Circuit rejected the Free Exercise Clause claim, affirmed the district judge's conclusion on lack of standing to raise the claims of the minor clients (with some disagreement as to reasoning), and also affirmed on the intervention of an organization.

However, it is the free speech claim that it is the center of this controversy, with the Third Circuit carving out a "professional speech" category, in a disagreement with the Ninth Circuit (and on similar issues with other circuits as it notes), but clearly upholding the statute.

 [images from "Ten Days in a Mad House, Nellie Bly, via]

September 11, 2014 in Courts and Judging, First Amendment, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Speech, Standing | Permalink | Comments (0) | TrackBack (0)

Sunday, September 7, 2014

Ohio Federal Judge Rules State's New Voting Scheme Violates Equal Protection

In his 71 page  opinion in Ohio State Conference of the NAACP v. Husted, Judge Peter Economus has issued a preliminary injunction enjoining the Ohio legislature's amendments to the election code that limited early in-person voting.

This opinion is the latest installment in the early voting controversies in Ohio.  Recall that Judge Economus issued an order and opinion two years ago  enjoining the enforcement of new Ohio legislation and specifically restoring in-person early voting on the three days preceding Election Day for all eligible voters.   The Sixth Circuit, in its opinion in Obama for America v. Husted, upheld the injunction.  

580px-Seal_of_the_Ohio_Elections_Commission.svgAfter that controversy, the Ohio legislature enacted SB 238, which had the effect of eliminating the so-called "Golden Week," the period when citizens could both register to vote and cast their ballots at the same time.   The Ohio Secretary of State, Jon Husted, also issued directives setting uniform early in-person (EIP) voting hours for the entire state, eliminating evening voting hours and most Sunday voting during the EIP periods.

Much of the judge's opinion considers the various expert and other evidence regarding the effect of these changes.  Ultimately, Judge Economus found that the changes violated the equal protection rights of certain groups, relying heavily on the Sixth Circuit's opinion in Obama for America v. Husted and Bush v. Gore.

Here's the judge's penultimate paragraph on the equal protection claim:

The Court must now weigh the significant burdens placed on voting by SB 238 and Directive 2014-17 against the offered justifications. As stated above, the Court has found these justifications to be relatively hollow, and, in some cases, not necessarily supported by logic. Accordingly, while the burdens imposed on the voting rights of African Americans, lower income voters, and the homeless are not severe, it cannot be said that they are outweighed by the offered justifications. For instance, there is virtually nothing in the record tending to justify why a uniform voting schedule could not include evening voting hours and additional Sunday voting, especially considering that such voting opportunities have been successfully offered by individual counties in past elections. While the Defendants have frequently noted that Ohio’s system of absentee voting is one of the most expansive in the entire Country, one of the touchstones of the Fourteenth Amendment’s Equal Protection guarantee in the context of voting rights is that actions of a State must “avoid arbitrary and disparate treatment of the members of its electorate.” Bush v. Gore, 531 U.S. 98, 105 (2000). Here, despite the expansiveness of Ohio’s voting system, the weakness of the offered justifications supporting SB 238 and Directive 2014-17 render them essentially arbitrary action when viewed against the burdens they impose on groups of voters. Such action is prohibited by the Equal Protection Clause. Thus, the Court’s conclusions regarding the Plaintiffs’ Equal Protection claim are easily summarized as follows: SB 238 and Directive 2014-17 arbitrarily make it harder for certain groups of citizens to vote.

On the nonconstitutional claim, §2 of the Voting Rights Act, the judge likewise found that there was a substantial likelihood that the challengers could prevail on the merits of their claim.

The judge entered a preliminary injunction regarding early voting for the November 2014 election, the first provisions of which are effective September 30.  If the state is to appeal, it will need to move quickly.

September 7, 2014 in Elections and Voting, Equal Protection, Opinion Analysis, Race | Permalink | Comments (0) | TrackBack (0)

Thursday, September 4, 2014

Seventh Circuit Declares Same-Sex Marriage Prohibitions of Two States Unconstitutional

The Seventh Circuit heard oral arguments in Baskin v. Bogan and Wolf v. Walker were just last week.  Today, the court issued its unanimous opinion affirming the district court findings that the same-sex marriage bans in Indiana and Wisconsin are unconstitutional. 

The Seventh Circuit panel enjoined the states from enforcing the laws and did not issue a stay.

Judge Richard Posner (pictured right) who is perhaps the most well-known judge not on the United States Supreme Court and who attracted attention with his comments at the oral argument, perhaps not surprisingly wrote the 40 page opinion. 

441px-Richard_Posner_at_Harvard_UniversityPosner begins by implying the state laws before the court are outliers:

Indiana and Wisconsin are among the shrinking majority of states that do not recognize the validity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are lawful.

The panel's decision is based entirely on equal protection doctrine under the Fourteenth Amendment.  Here's Judge Posner introducing the concept that

comes wrapped, in many of the decisions applying it, in a formidable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest. We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage.

However, Judge Posner's analysis draws heavily on his work in law and economics, implying that cost-benefit analysis deserves more attention that the "conventional approach"  - - - which "doesn’t purport to balance the costs and benefits of the challenged discriminatory law" - - - gives it.  For Posner:

Our pair of cases is rich in detail but ultimately straight- forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

9780674802803Judge Posner doesn't cite his own 1992 book, Sex and Reason, but he could have.  And the rhetorical style and much of the reasoning in this opinion echoes the book, which was widely debated.

Judges Williams and Hamilton apparently agreed.

If the cases go en banc or to the Supreme Court, it will be interesting to see if any of the law and economics rationales are prominent.

 

 

September 4, 2014 in Courts and Judging, Equal Protection, Family, Fundamental Rights, Gender, Opinion Analysis, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (1) | 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)

Tuesday, September 2, 2014

Seventh Circuit Upholds Indiana's Right-to-Work Law

A sharply divided three-judge panel of the Seventh Circuit today upheld Indiana's "right to work" law against federal preemption and other constitutional challenges.  The ruling means that Indiana's law stays on the books--a serious blow to unions in the state.  But the division invites en banc review and even Supreme Court review of this bitterly contested issue.

The case, Sweeney v. Pence, tested the constitutionality of Indiana's "right to work" law, enacted in February 2012.  That law prohibits any person from requiring an individual to join a union as a condition of employment.  As relevant here, it also prohibits any person from requiring an individual to "[p]ay dues, fees, assessments, or other charges of any kind or amount to a labor organization" as a condition of employment.  In short, it prohibits mandatory "fair share" fees--those fees that non-union-members have to pay for the collective bargaining activities of a union (but not the union's political activities), in order to avoid free-riding. 

The law deals a blow to unions, because it allows non-members to escape even representational fees (or "fair share" fees, those fees designed to cover only a union's collective bargaining and employee representational costs, but not political expenditures), even as federal law requires unions to provide "fair representation" to all employees, union or not.  This encourages "free riders," non-member employees who take advantage of union activities but decline to pay for them.

The plaintiffs, members and officers of the International Union of Operating Engineers, Local 150, AFL-CIO, argued that the National Labor Relations Act preempted Indiana's law and that the law violated various constitutional individual-rights protections.  The preemption argument turned on two provisions of the NLRA, Sections 8(a)(3) and 14(b).  Section 8(a)(3) provides,

It shall be an unfair labor practice for an employer . . . by discrimination in regard to hire or tenure or employment or any term or condition of employment to encourage or discourage membership in any labor organization.

Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein . . . .

Section 14(b) says,

Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.

The Union argued that under this language a state may ban an agency-shop agreement (a requirement that all employees pay full union dues, whether or not they are members), but not a lesser union-security arrangement (like a fair share requirement).

The majority disagreed.  The court said that Indiana had broad rights to restrict union-security agreements, including fair share.  It first pointed to Supreme Court cases (Retail Clerks I and II) that held that Section 14(b) allowed a state to ban an agency-shop agreement.  It then read the term "membership" in Section 14(b) quite narrowly, to include non-members who were required to pay fair share fees.  (That's right: the court said that non-members were part of the "membership" under Section 14(b).)  The court said that the final clause of Section 14(b) therefore leaves room for states to ban complete union-security agreements (like agency shops) and also lesser union-security agreements (like fair share).  It said that some states had these laws on the books when Congress passed Section 14(b), and that some states have them on the books today.  "The longevity of many of these statutes, coupled with the lack of disapproval expressed by the Supreme Court, suggests to us that Indiana's right-to-work law falls squarely within the realm of acceptable law." 

The majority also rejected the plaintiffs' individual-rights arguments, under the Takings Clause, the Contracts Clause, the Ex Post Facto Clause, the Equal Protection Clause, and the Free Speech Clause.

Judge Wood dissented.  She argued that under the majority's approach, Indiana's law amounted to an unconstitutional taking (because, along with the duty of fair representation, it required the union to do work for non-members without pay).  She said the better approach (under constitutional avoidance principles)--and the one more consistent with the language of the NLRA and Retail Clerks I and II)--said that the NLRA preempted Indiana's law.

The sharp disagreement on the panel, the uncertain state of the law, and the contentiousness of the underlying issue all suggest that this case is ripe for en banc review and, ultimately, Supreme Court review.  If so, this case could be the next in a recent line of anti-union rulings chipping away at fair share.

September 2, 2014 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Monday, September 1, 2014

District Judge Enjoins Portions of Texas' Restrictive Abortion Law, HB 2

The latest installment in the continuing saga of HB 2, Texas' restrictive abortion law, occurred late Friday with Judge Lee Yeakel enjoining the admitting privileges requirement and the ambultory-surgical-center requirement in his 21 page  opinion  in Whole Woman's Health Center v. Lakey.

Recall that a panel of the Fifth Circuit in March upheld the admitting privileges provision of controversial  Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis, after it had issued a stay of Judge Yeakel's decision enjoining the provision as unconstitutional. 

This new opinion considers the as-applied challenge to the admitting privileges provision combined with the the ambultory-surgical-center requirement. 

In considering the testimony and evidence in the bench trial, Judge Yeakel found that the "experts’ testimony substantially contradicted each other and, predictably, reached opposing conclusions," noting that this is "the nature of expert testimony."   But the judge did use some of that testimony, as well as carefully considering the parties' stipulations. 

The court concludes that the act’s ambulatory-surgical—center requirement, combined with the already in-effect admitting-privileges requirement, creates a brutally effective system of abortion regulation that reduces access to abortion clinics thereby creating a statewide burden for substantial numbers of Texas women. The obstacles erected for these women are more significant than the “incidental effect of making it more difficult or more expensive to procure an abortion.” [citing Casey].  The court concludes that the overall lack of practical access to abortion services  resulting from clinic closures throughout Texas as a result of House Bill 2 is compelling evidence of a substantial obstacle erected by the act.  

The judge also concluded "that the severity of the burden imposed by both requirements is not balanced by the weight of the interests underlying them."  And, perhaps most interestingly, the judge explicitly considered the legislative intent of HB2:

An abortion regulation is also violative of a woman’s right to an abortion if it was adopted with the purpose of erecting a substantial obstacle to a woman’s ability to choose a previability abortion. [citing Gonzales v Carhart]. Because the act’s two requirements have the effect of creating an undue burden, an additional finding that the act was passed with the purpose of erecting a substantial obstacle is not required in order to declare the act unconstitutional. However, the court  concludes, after examining the act and the context in which it operates, that the ambulatory-surgical- center requirement was intended to close existing licensed abortion clinics. The requirement’s  implementing rules specifically deny grandfathering or the granting of waivers to previously licensed  abortion providers. This is in contrast to the “frequent” granting of some sort of variance from the  standards which occur in the licensing of nearly three-quarters of all licensed ambulatory surgical  centers in Texas. Such disparate and arbitrary treatment, at a minimum, suggests that it was the intent of the State to reduce the number of providers licensed to perform abortions, thus creating a substantial obstacle for a woman seeking to access an abortion. This is particularly apparent in light of the dearth of credible evidence supporting the proposition that abortions performed in ambulatory  surgical centers have better patient health outcomes compared to clinics licensed under the previous regime.  

[emphasis added].

Thus, the judge enjoined the enforcement of HB2.  

The Attorney General of Texas is sure to appeal. 

September 1, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Gender, Opinion Analysis, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Friday, August 29, 2014

Sovereign Immunity Protects Official's Determination of Streambed Ownership

The Ninth Circuit ruled this week in Lacano Investments v. Balash that state sovereign immunity barred a suit against a state official for his determination that streambeds claimed by the plaintiffs were owned by the State of Alaska.  The court said that the relief plaintiffs requested--declaratory relief and an injunction prohibiting the defendants from claiming title to the lands beneath the waterways--was the funcational equivalent of quiet title, a claim that under Idaho v. Coeur d'Alene Tribe of Idaho does not fall within Ex parte Young.

The case arose when an Alaskan official determined pursuant to the federal Submerged Lands Act of 1953 that certain streambeds over which the plaintiffs claimed ownership were in fact owned by the State of Alaska.  The plaintiffs said that they owned the streambeds pursuant to a federal land patent granted the year before Alaska became part of the Union.  When the official then determined that the streambeds belonged to the state, the plaintiffs sued, seeking declaratory and injunctive relief.

Under Ex parte Young, the plaintiffs could sue a state official for injunctive relief and dodge state sovereign immunity under the Eleventh Amendment.  But the Supreme Court limited Ex parte Young in Coeur d'Alene, holding that the Eleventh Amendment barred a suit that was "the functional equivalent of a quiet title action."  That's because that kind of claim "implicate[d] special sovereignty interests"--the historical and legal importance of submerged lands to state sovereignty.  The Coeur d'Alene Court explained that "if the Tribe were to prevail, Idaho's sovereign interest in its lands and waters would be affected in a degree fully as intrusive as almost any conceivable retroactive levy upon funds in its Treasury."

The plaintiffs argued that Coeur d'Alene was distinguishable, because the plaintiffs in that case sought to divest the state of its title (and not, as here, the other way around), and because a ruling for the plaintiffs in Coeur d'Alene would have deprived the state of all regulatory power over the property (and not so here).  The court didn't bite, however.  The court also rejected the plaintiffs' argument that Coeur d'Alene is no longer good law.  Instead, the court applied Coeur d'Alene, ruled that the plaintiffs' claim was quiet-title-like, and held that the claim was therefore barred by state sovereignty under the Eleventh Amendment.

The ruling means that the plaintiffs' case is dismissed.

August 29, 2014 in Cases and Case Materials, Eleventh Amendment, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Thursday, August 28, 2014

Utah District Judge Finalizes Judgment on Unconstitutionality of Polygamy Prohibition

In a brief  Memorandum and Judgment  in Brown v Herbert federal district judge Clark Waddoups has finalized his conclusion - - - and made appealable - - - his previous decision that Utah's anti-bigamy statute is partially unconstitutional.  

Recall that the Utah provision at issue criminalized bigamy as defined as including when a married person "purports to marry another person or cohabits with another person."  

Sister-wives-419-250x150The challengers to the statute, the Browns, are famous from the reality program Sister Wives and the accompanying book.  The show includes "commitment ceremonies" between Cody brown and subsequent wives.   They are represented by ConLawProf Jonathan Turley who blogs about this judgment, including the possibilities of appeal, here.

It does seem that given the breadth of the statutory proscription on "bigamy" that includes  cohabitation, an appeal might be ill-advised.   A strict enforcement of the statute would mean that anyone whose divorce was not final and who cohabited with another person might be guilty of bigamy. 

[image via]

August 28, 2014 in Due Process (Substantive), Fourteenth Amendment, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 26, 2014

Divided DC Circuit Grants Standing to Challenge Battle of Blair Mountain Historic Preservation

In its split opinion in Sierra Club v. Jewell, a panel of the DC Circuit Court of Appeals has held that a coalition of groups have standing to challenge the revocation of listing on the National register of Historic Places for Blair Mountain Battlefield in West Virginia.

As the first paragraph of the opinion by Judge Srinivasan reminds us:

The Battle of Blair Mountain is the largest armed labor conflict in our nation’s history. Blair-1921-miners-turning-in-guns-6052-copyIn late August 1921, after years of tension between coal miners and coal companies, more than 5,000 West Virginia coal miners began a march to Logan and Mingo Counties, West Virginia. They aimed to unionize and liberate fellow miners living under martial law. When they reached Blair Mountain, a 1,600-acre area in Logan County, they encountered roughly 3,000 armed men. Those men, mostly hired by coal companies, manned a ten-mile defensive line across Spruce Fork Ridge, including Blair Mountain. They dug trenches, mounted machine guns, and dropped homemade bombs. The miners responded with gunfire of their own. The Battle endured for several days, causing numerous casualties. President Harding sent federal troops to quell the fighting, and the coal miners surrendered.

 In this case, the battle again features coal companies, but on the other side are environmental and historic preservation groups.  The registration of the Battlefield on the National Register, which would arguably prevent surface mining, was hard-fought.  One criteria is that a majority of property owners not object, but after the Battlefield was listed, "a number of objections" from a "law firm representing several coal companies" were determined not to have been counted, and the Battlefield was delisted.  It is this delisting that is being challenged.

The district judge found that the challengers did not satisfy any of the classic elements of standing.  On appeal, the majority of the panel found that the challengers satisfied all three. 

Probably most controversial is the initial requirement of "injury in fact" that is both "concrete and particularized" and "imminent."   The panel rejected the coal companies amicus argument that the challengers cannot suffer an injury in fact because they possess no "legal right to enter the Battlefield area."  It is this absence of  "legal right" that Senior Judge Sentelle, dissenting, rests his disagreement.  For the majority, however, the challengers could enjoy and observe the land from surrounding areas, including public roads: "there is no reason that the cognizability of aesthetic and associated interests in a particular site could turn on owning a legal right to enter or view the property."  Thus, their injury was sufficiently concrete and particularized.   As to the imminence of injury, while the district judge had stressed the non-use of the existing mining permits for the past decade, the appellate panel noted that in a letter objecting to the registration of the Battlefield, the coal companies stated that they had an "expectation of developing" the coal in the site.

More complicated are the questions of causation and redressibility, "two sides of the causation coin," because they involve the interplay of the federal registration requirements and West Virginia law, and specific issues regarding the initial approval of mining permits as opposed to permit renewals.  The panel stated that the challengers must only show that their argument is "non-frivolous" and not convince the court that their interpretation on the merits is correct, in order to satisfy the standing causation and redressibility requirements.

Thus, the battle of Blair Mountain will be proceeding to yet another round. 

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[image of Blair Mountain Battle via; image of West Virginia autumn colors via]

August 26, 2014 in Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Sunday, August 24, 2014

Ninth Circuit Upholds Ban on Solicitation at LAX

The Ninth Circuit ruled last week in International Society for Krishna Consciousness of California, Inc. (ISKCON) v. City of Los Angeles that the ban on continuous or repetitive solicitation at Los Angeles International Airport--including a ban on solicitation in parking lots and sidewalks--did not violate the First Amendment.

This final ruling ends this long-running case, which worked its way back and forth between the trial court, appeals court, and state courts for nearly two decades.

The provision at issue, Section 23.27(c) of the Los Angeles Administrative Code, bans solicitation in the LAX terminal, sidewalks, and parking lots.  ISKCON wished to solicit in these areas and argued that the ban violated free speech.

The Ninth Circuit applied familiar forum analysis and ruled that the terminal, surrounding sidewalks, and parking lots were non-public forums and that the government's reasons for the ban--reducing congestion and fraud at LAX--were legitimate.  The court said that changes to security and the resulting reduction in space available for passengers since 9/11 made the government's interests stronger than the interests in Int'l Soc'y for Krishna Consciousness, Inc. v. Lee (Lee I) (upholding the Port Authority's ban on solicitation in New York City's airport terminals).  ISKCON goes a step farther than Lee I, however, in that it specifically upholds the ban on sidewalks and parking lots, too.  As to sidewalks, the court said,

In all events, [the government's] interest in reducing congestion only heightened along LAX's narrow, oft-crowded sidewalks, which span but twelve feet in certain areas.  Furthermore, [the government's] interest in protecting against fraud and duress is just as strong on the sidewalks as it is inside the terminals.

The ruling aligns the Ninth Circuit with the Eleventh, which upheld a similar ban in ISKCON Miami, Inc. v. Metropolitan Dade County

August 24, 2014 in Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

State May Require Provider to Accompany Developmentally Disabled Client to Church

The Ninth Circuit ruled last week in Williams v. State of California that a state law requiring residential community care service providers to accompany developmentally disabled clients to religious services did not violate the First Amendment.  The very brief per curiam ruling simply incorporated the district court's order granting the state's motion to dismiss.

The plaintiffs in the case, residential community care facilities and employees, sued the state after the state cited the plaintiffs for violating their obligations to a client--in particular, for failing to accompany a client to Jehovah's Witness services in violation of the state's Lanterman Developmental Disabilities Services Act.  Several of the service providers' employees objected to accompanying the client to services, because, they argued, to do so would violate their own religious freedom.

The district court's opinion, adopted in whole by the Ninth Circuit, took the plaintiffs to task for sloppy pleading and argument, and went on to reject their Free Exercise and Establishment Clause claims.  As to the Free Exercise claim, the district court held that the Lanterman Act was a law of general applicability, and had a rational basis--"to allow developmentally disabled persons to approximate the lives of nondisabled persons."  As to the Establishment Clause claim, the court said that the Act had a secular purpose (same as above), a primary effect that neither advances nor inhibits religion (because it applies to all manner of community activities, religious or not, and to all religions equally), and no excessive government entanglement with religion. 

The plaintiffs' claims were weak, even non-starters, from the get-go, but they didn't help themselves with sloppy pleading, undeveloped arguments, and an apparent complete lack of response to certain court requests.  All this made it easy for the Ninth Circuit simply to adopt the district court's ruling as its own and to affirm the dismissal of the case.

August 24, 2014 in Cases and Case Materials, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2014

The Next Campaign Finance Law to Go Down?

Judge Christopher R. Cooper (D.D.C.) earlier this week in Rufer v. FEC granted a plaintiff's motion to send its First Amendment challenge to the restriction on contributions to political parties to the en banc D.C. Circuit for consideration.  But in the same ruling, Judge Cooper denied a motion to temporarily enjoin the law.

The seemingly mixed ruling means that the court sees the challenge as both including "substantial, non-frivolous constitutional claims that are not clearly foreclosed by Supreme Court precedent" (thus meeting the statutory standard for appointment of an en banc circuit court under FECA) and "in tension with forty years of Supreme Court jurisprudence upholding contribution limits to political parties" (thus failing the likely-to-succeed-on-the-merits standard for a preliminary injunction).

In plain language, the ruling seems to reflect the court's view that while current Supreme Court doctrine supports contribution limits to political parties, that's likely to change. 

He's probably right.

But Judge Cooper's decision is not a ruling on the merits.  It only sends the constitutional question to the en banc D.C. Circuit ("after developing an appropriate factual record"), thus fast-tracking it to the Supreme Court, and presages the likely end result with this Supreme Court: the federal limit on contributions to political parties will almost surely go down.

The case was brought by the national and state Republicans and Libertarians challenging the federal restriction on base contributions to political parties.  The plaintiffs argued that they could segregate contributions for independent expenditures in separate accounts, and therefore avoid quid pro quo corruption or its appearance--the two government interests that the Court has said justify contribution limits to candidates and political parties.  Judge Cooper said it better:

This case sits at the confluence of two currents of First Amendment jurisprudence concerning federal campaign finance: the constitutional permissibility of limiting contributions to federal candidates and political parties, and the constitutional impermissibility of limiting contributions to independent entities whose campaign expenditures are not coordinated with candidates or parties.  Plaintiffs rest their challenge on the latter current; the FEC resists it on the former.

Judge Cooper ruled that the plaintiffs' free speech challenge to the contribution limits raised significant enough questions to justify sending the issue to the en banc D.C. Circuit, a procedure available under FECA designed to get important issues quickly before a full circuit court and ultimately the Supreme Court.  But at the same time, Judge Cooper denied a plaintiff's motion for a preliminary injunction, ruling that well settled (for now) Supreme Court precedent meant that the plaintiffs couldn't show that they were likely to succeed on the merits.

Taken together, the two sides of this ruling mean that the court understands the current state of the law, but can also read the tea leaves--which say that the law's likely to change.

Judge Cooper's decision isn't a ruling on the merits.  Still, it fast-tracks the case to the en banc D.C. Circuit and then, inevitably, to the Supreme Court.  It also presages the likely result in this Supreme Court: contribution limits to political parties will almost surely go down.

August 20, 2014 in Campaign Finance, Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

No Head-of-State Immunity for Finance Minister

Judge James E. Boasberg (D.D.C.) ruled earlier this week in Sikhs for Justice v. Singh that while Manmohan Singh enjoyed head-of-state immunity from suit in U.S. federal court for acts committed while he was Prime Minister of India, that immunity did not extend to acts he took earlier, when he was Finance Minister.  They ruling means that the plaintiff's case against Singh for acts he took while Finance Minister can move forward, but that Singh is immune from suit for acts he took while Prime Minister.

Plaintiffs Sikhs for Justice alleged that Singh tortured and killed Indian Sikhs during his time as Prime Minister and before, when he was Finance Minister.  The group filed suit in the D.C. District while Singh was Prime Minister, but Singh then left office (or, rather, got voted out).  The government filed a Suggestion of Immunity, arguing that Singh enjoyed head-of-state immunity for acts he committed as Prime Minister.  But it didn't state a position on immunity for acts before Singh became Prime Minister, when he was Finance Minister.

Judge Boasberg ruled that Singh wasn't immune for those acts.  In a case of apparent first impression, Judge Boasberg said that "[w]hile Singh's alleged acts as Finance Minister are not 'private' per se, they did not occur in the course of his official duties as head of state; accordingly they are not encompassed within the purview of head-of-state immunity."

Judge Boasberg, however, adopted the government's position and granted immunity for acts taken while Singh was Prime Minister.  Judge Boasberg also ruled that Singh enjoyed risidual immunity for those acts after he left office.

The upshot is that the plaintiff's case can proceed against Singh for acts he took as Finance Minister, but not for acts he took as Prime Minister, even after he left office.

August 20, 2014 in Cases and Case Materials, Courts and Judging, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 19, 2014

Third Circuit Holds Philadelphia Police Campaign Contribution Rule Violates First Amendment

Can a city prohibit police officers from making monetary contributions to political campaigns, including contributions to their union's political action committee?  The Third Circuit, in its opinion in Lodge No. 3, Fraternal Order of Police v. City of Philadelphia concludes that such a rule violates the First Amendment.

465px-Whistle_Cop_Sept_1920The history behind the prohibition is a fascinating one, which the court's opinion by Judge Thomas Hardiman discusses as great length because one "cannot understand" the prohibition without "reference to Philadelphia's efforts to combat patronage" given its unsavory history.   As the court explains:

The nefarious relationship between Philadelphia’s Republican machine and its police force culminated in September 1917 with the scandal of the “Bloody Fifth” Ward, where officers beat an opposition candidate, terrorized his supporters, and killed a detective who attempted to intervene. The incident led to the arrest of the mayor and the conviction of six police officers, as well as public outcry for the insulation of the civic bureaucracy from politics. Amidst these calls for reform, in 1919 the Pennsylvania Assembly granted Philadelphia a new Charter, which enacted a series of reforms aimed at reducing corruption within government and the police department.

 The present rule, adopted in 1951, prohibits political contributions by police officers as a method of combating corruption and promoting public confidence.  The court analyzed the prohibition under United States v. National Treasury Employees Union (NTEU), 513 U.S. 454 (1995), requiring the government "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way."  The Third Circuit agreed with the district court, although not with much enthusiasm, that the recited harms were real.  However, the Third Circuit disagreed with the district judge that the second prong was satisfied, holding that the regulation did not alleviate the harms in a sufficiently direct and material manner.

In part, the direct and material failure was based on the exclusive application to police officers:

The City also fails to persuade us why the contribution ban should apply only to the police, and not to the approximately 20,000 other individuals in its employ. The record shows that the Republican machine historically extracted political assessments from all civic employees: the practice was so pervasive that, in the early 20th century, the machine collected contributions from 94 percent of the city’s workforce. If the Charter ban’s purpose was to end such compulsory wage contributions, it is unclear why the City would enforce the ban only against the police. Moreover, the City has made no attempt to show that the Democratic Party’s recent dominance in Philadelphia politics was achieved through corruption.

As the court notes, the regulation also applied to firefighters, but the Philadelphia firefighters’ union "in a case remarkably similar to this one, successfully challenged the ban as an unconstitutional infringement on its members’ First Amendment rights" in 2003 and the city did not appeal.  Moreover, the court notes that the city is "simultaneously condoning political activities by the police that have similar, if not more pernicious, implications" than the contribution bar.

The Third Circuit also relies on recent United States Supreme Court cases on campaign finance such as McCutcheon v. FEC and Citizens United v. FEC, gaining support for its conclusion that the regulation violates the First Amendment.

The opinion notes that the city has other ways to achieve its goals: "for example, the prohibition of automatic paycheck deductions, or greater enforcement of existing anti-solicitation measures."  Even as it says it is "loath to disturb" a rule that has been in effect for decades given Philadelphia's history of corruption, the court makes clear that the rule has outlived its usefulness - - - and its constitutionality.

[image via]

August 19, 2014 in Campaign Finance, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, August 18, 2014

Second Circuit Orders Compliance Reports on Erie County Prisons Unsealed

The Second Circuit ruled today in U.S. v. Erie County, New York that a lower court's order sealing compliance reports on the treatment of prisoners in Erie County violated the First Amendment.  The ruling means that intervenor New York Civil Liberties Union will have access to the compliance reports.

This First Amendment dispute arose out of an earlier case brought by the United States against Erie County, New York, over the County's treatment of its prisoners.  In particular, the government alleged that Erie County failed to protect inmates from harm, failed to provide them adequate mental health care or medical care, and failed to engage in adequate suicide prevention.

The district court approved a settlement in that earlier case that included the appointment of compliance consultants.  Pursuant to the settlement, the consultants would file written reports with the court every six months on the County's progress, or not, in remedying the issues that led to the suit and settlement.  The court dismissed the suit but retained jurisdiction until the terms of the settlement were fulfilled.  The settlement agreement allowed either party to move to reopen the case at any time ("should issues requring [the] Court's intervention arise"), and either party could move for relief, or the court could issue relief itself.  The County moved, and the court ordered, that the reports be sealed.

The NYCLU moved to intervene and unseal the compliance reports.  The district court granted the motion to intervene, but denied the motion to unseal the reports, ruling that they were akin to settlement negotiation documents and therefore not subject to the First Amendment right of access to judicial documents.  The NYCLU appealed.

The Second Circuit reversed and ruled that the reports were covered by the First Amendment right of access.  The court held that both experience and logic suggest that the reports ought to be available to the public, and that the County's only reason for maintaining the seal--that they are part of a settlement agreement--didn't have any relevance here, because, after all, the case already settled. 

Here's the court:

Erie County wishes to keep the reports which measure its progress, or regress, under seal and, therefore, out of public view.  Yet every aspect of this litigation is public.  The United States Department of Justice is a public agency, which brought a claim before a public court . . . arguing that a public government, Erie County, failed to meet constitutional requirements in operating two public institutions, the Erie County correctional facilities.  And, critically, although a settlement is now in place, the public court retains jurisdiction over the dispute, and indeed may be moved, or move itself, to reinstate civil proceedings.  In a case where every aspect and angle is public, Erie County seeks, nonetheless, to keep the compliance reports under the darkness of a seal.  But the First Amendment does not countenance Erie County's position.  Neither experience nor logic supports sealing the documents, and the District Court erred in concluding otherwise.

August 18, 2014 in Cases and Case Materials, Courts and Judging, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Second Circuit Finds NYC's MBP Circumcision Regulation Merits Strict Scrutiny

Reversing the district judge's decision rendered more than 18 months ago which we discussed here, the Second Circuit's  opinion in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene holds that the NYC regulation targeted at a certain circumcision practice is essentially one that as targeted at a certain religion and thus merits strict scrutiny under the First Amendment's Free Exercise Clause.

The NYC regulation, §181.21, amended the NYC Health Code, by requiring specific consent and a warning for "oral suction" circumcision.   The Second Circuit's unanimous panel, in an opinion authored by Judge Debra Ann Livingston, disagreed with the district judge and found that the regulation was not a neutral and generally applicable law. [*]

The opening of the court's opinion is telling:

In Judaism, the “bris milah,” or ritual circumcision of infants, which has been practiced for millennia, celebrates a covenant with God and“derives explicitly from a commandment . . . in the Hebrew Bible.” 11 Encyclopedia of Religion, “Rites of Passage: Jewish Rites,” at 7818 (2d ed. 2005). As part of this ritual circumcision, some Orthodox Jews, particularly Satmar, Bobov, Lubavitch, and other Hasidic groups, perform direct oral suction of the circumcision wound in a ritual act known as metzitzah b’peh (“metzitzah b’peh” or “MBP”).

Relying on  Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the court reaches the conclusion that the

Regulation is not neutral because it purposefully and exclusively targets a religious practice for special burdens. And at least at this preliminary stage, the Regulation is not generally applicable either, because it is underinclusive in relation to its asserted secular goals: the Regulation pertains to religious conduct associated with a small percentage of HSV infection cases among infants, while leaving secular conduct associated with a larger percentage of such infection unaddressed.

Indeed, the court held that the question of whether the NYC Regulation singles out a specific religious practice is "simpler to address" than was true in Lukumi "in light of the Department’s own admission that metzitzah b’peh 'prompted' § 181.21 and that metzitzah b’peh is 'the only presently known conduct' covered by the Regulation."

 The court notes that "the conclusion that the Regulation is subject to strict scrutiny does not mean that § 181.21 is constitutionally deficient, for strict scrutiny is not invariably fatal in the context of free exercise claims." 

The Department has asserted interests that are substantial and may prove, on analysis, to be compelling. And the means it has chosen to address these interests (means that fall short of outright prohibition of MBP and that may further the goal of informed parental consent) may be appropriately tailored, albeit intrusive on a longstanding religious ritual. Mindful of the serious interests at stake on both sides, we express no view as to whether the plaintiffs have borne their burden of establishing a likelihood of success on the merits.

The court remanded, but denied the request for a stay of the enforcement of the regulation.  The district judge's original 93 page order and opinion was largely devoted to the empirical evidence regarding the health effects of the practice; it looks as if she will be hearing the evidence on those very issues, but applying a heightened standard.

[*] updated: The Second Circuit did not reach the compelled speech argument; h/t Josh Blackman.

August 18, 2014 in First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Religion | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 12, 2014

Third Circuit: Attorney Advertising Rule Regarding Excerpts from Judicial Opinions Violates First Amendment

The New Jersey Supreme Court's Guideline 3 governing attorney advertising provides:

An attorney or law firm may not include, on a website or other advertisement, a quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions, including those that discuss the attorney’s legal abilities, on a website or other advertisement.

The Third Circuit's opinion in Dwyer v. Cappell found this guideline violated the First Amendment's protection of commercial speech in a rather straightforward application of Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985).  The court chose to analyze the regulation as one of mandated disclosure - - - the entire opinion must be provided - - - rather than one of prohibition, although the Guideline

bears characteristics of both categories. Yet we need not decide whether it is a restriction on speech or a disclosure requirement. This is because the Guideline is not reasonably related to preventing consumer deception and is unduly burdensome. Hence it is unconstitutional under even the less-stringent Zauderer standard of scrutiny.

800px-Advertisement_of_the_United_States_Employment_Service,_8d16963vThe case arose because New Jersey attorney Andrew Dwyer, specializing in employee representation, ran afoul of Guideline 3  - - - which may have been specifically targeted at him - - - by using on his website language from judicial opinions in attorney fee award matters that duly assessed his competency.   At bottom is the general concept of professional responsibility prohibiting judicial endorsement of attorneys, but in the context of fee award decisions, such assessment is explicitly required.  One judge objected to the use of his comments in an opinion and Guideline 3 eventually resulted.

The Third Circuit implicitly rejected the notion that such excerpts were inherently misleading and noted that even if the excerpts were "potentially misleading to some persons," there is no explanation of how "Dwyer’s providing a complete judicial opinion somehow dispels this assumed threat of deception."  Moreover, the Third Circuit found under Zauderer that the disclosure requirement was burdensome: accurately quoted material is not acceptable absent the full-length judicial opinion and even "a hyperlink to unquoted portions of the opinion fails the Guideline." 

The Third Circuit's conclusion is well-founded in established First Amendment doctrine that robustly protects advertising, even by attorneys. 

Templeton-lindsay-templeton-ad
Lawyer advert circa 1900 via

August 12, 2014 in Courts and Judging, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)