Tuesday, December 16, 2014
A federal district judge in Pennsylvania has taken it upon himself to rule President Obama's recently announced immigration action unconstitutional--in a case that apparently has nothing to do with the action. We've posted on President Obama's action, and challenges to it, here, here, and here.
The surprising and brazenly activist, stretch-of-a-ruling underscores just how political President Obama's action has become, driving a district judge to reach out in a wholly unrelated case to rule the action unconstitutional.
The ruling comes in a case involving an undocumented immigrant who pleaded guilty to re-entry into the United States by a removed alien in violation of 8 U.S.C. Sec. 1326. Judge Arthur J. Schwab (W.D. Pa.) then ordered the parties to brief whether President Obama's action has any impact on the defendant, and whether the action is constitutional. Despite the government's reply that the action wouldn't affect this defendant (because "the Executive Action is inapplicable to criminal prosecutions under 8 U.S.C. Sec. 1326(a), and . . . [it] solely relates to civil immigration enforcement status"), and the defendant's agreement with that position, Judge Schwab said that the action could protect the defendant from removal and went ahead to rule on its constitutionality.
Even if the action applied to the defendant, however, Judge Schwab didn't bother to explain why ti was relevant to this proceeding, or why he had to rule on its constitutionality, except to say this:
Specifically, this Court was concerned that the Executive Action might have an impact on this matter, including any subsequent removal or deportation, and thereby requiring the Court to ascertain whether the nature of the Executive Action is executive or legislative.
Judge Schwab went on to say why he thought the action was unconstitutional, relying not on the ordinary judicial tools for such an important task (like, say, the text of the law, serious consideration of Supreme Court precedent, prior executive practice, etc.), but instead on President Obama's public statements about the action. Judge Schwab wrote that the President can't act just because Congress won't (answering President Obama's public statements suggesting that he'd act unilaterally if Congress wouldn't) and that the President's action is policy-making, not prosecutorial discretion, because it treats a large class of people alike.
Oddly, after concluding that the action is unconstitutional, Judge Schwab goes on to consider whether it applies to this defendant. (His conclusion: maybe, maybe not. Judge Schwab says the action leaves the defendant in a "no-man's land.") Ordinarily, this question would come prior to the constitutional question--for constitutional avoidance reasons, but also because it is logically prior to the constitutional question. Still, Judge Schwab answered it second.
In a final surprising move, Judge Schwab says that President Obama's action violates the rights of the defendant, because it doesn't obviously grant deferred status to him, even as it grants deferred status to others.
Judge Schwab concluded by giving the defendant a chance to withdraw his guilty plea, go to sentencing and take one year supervised release in the United States, or go to sentencing and be turned over to ICE.
So the logic of the opinion appears to be this: The President's action is unconstitutional; but if it is constitutional, it doesn't obviously apply (or not apply) to the defendant; and therefore the defendant should have a chance to withdraw his guilty plea in order to (possibly) take advantage of the (unconstitutional) action. All this after both parties agreed that the President's action didn't really have anything to do with this case in the first place.
With all its twists and turns, it's really hard to make heads or tails of this opinion. But one thing is clear: This is not the stuff of a serious separation-of-powers ruling. If the case against President Obama's action is going anywhere, opponents are going to have to do better--much better--than this.
In its opinion in Vivid Entertainment v. Fielding, a panel of the Ninth Circuit affirmed the district judge's denial of a preliminary injunction to Los Angeles Measure B, passed by voter initiative in 2012.
The central issue in the case was the so-called "condom mandate" that requires performers to use condoms during "any acts of vaginal or anal sexual intercourse." The opinion, authored by Judge Susan Gruber, and joined by Judge Alex Kozinksi and sitting by designation Judge Jack Zouhary), agreed with the district judge that the First Amendment challenge to the mandate was subject to intermediate scrutiny. The Ninth Circuit relied in large part on the "secondary effects" doctrine, finding that
The purpose of Measure B is twofold: (1) to decrease the spread of sexually transmitted infections among performers within the adult film industry, (2) thereby stemming the transmission of sexually transmitted infections to the general population among whom the performers dwell.
The court rejected the argument that strict scrutiny should apply nevertheless because Measure B was a "complete ban" on the protected expression, which plaintiffs would define as "condomless sex" ("condomless sex differs from sex generally because condoms remind the audience about real-world concerns such as pregnancy and disease . . . films depicting condomless sex convey a particular message about sex in a world without those risks). Citing Spence v. Washington (1974), the Ninth Circuit concluded that "whatever unique message Plaintiffs might intend to convey by depicting condomless sex, it is unlikely that viewers of adult films will understand that message." Moreover, in an interesting footnote (6), the Ninth Circuit distinguished between the expression and the conduct:
On its face, Measure B does not ban expression; it does not prohibit the depiction of condomless sex, but rather limits only the way the film is produced.
(emphasis in original). The panel opinion also discussed - - - and rejected - - - the arguments that Measure B was not sufficiently "narrowly tailored" in the intermediate scrutiny test because there was a voluntary testing and monitoring cheme for sexually transmitted diseases and that Measure B would be "ineffective" because producers could simply move beyond county lines.
The district judge did, however, find that certain portions of Measure B did not survive the constitutional challenge. On appeal, the plaintiffs argued that Measure B was not subject to severance. The Ninth Circuit panel rejected the severance argument, but helpfully included as an appendix to its opinion a "line-edited version" of Measure B.Finally, the Ninth Circuit panel rejected the argument that the appellate court did not have Article III power to hear the appeal because the intervenors - - - including a Campaign Committee Yes on Measure B - - - lacked Article III standing. The panel distinguished Hollingsworth v. Perry (the Prop 8 case), noting that here it was not the intervenors that sought to appeal but the plaintiffs themselves who had invoked the court's power.
The Supreme Court ruled yesterday in Heien v. North Carolina that the Fourth Amendment does not prohibit an officer from making a stop based on a reasonable mistake of law. We posted an argument preview here and review here.
The ruling puts a heavy thumb on the scale in favor of law enforcement and puts the burden of vague or ambiguous laws, or an officer's reasonable misunderstanding of law, on ordinary citizens.
Chief Justice Roberts wrote for the 8-justice majority that the "reasonable suspicion" standard required for a stop allows for an officer's mistake of law, no less than it allows for an officer's mistake of fact:
The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.
Chief Justice Roberts was careful to emphasize that a mistake must be objectively reasonable--a point emphasized by Justice Kagan (joined by Justice Ginsburg) in concurrence. Still, an officer's reasonable mistake of law is now enough to justify reasonable suspicion for a stop.
Justice Sotomayor filed the lone dissent. She argued that an officer's reasonable mistakes of fact are different from an officer's reasonable mistakes of law: officers are better at judging indeterminate and evolving facts on the street, but the courts are better at the law:
After all, the meaning of the law is not probabilistic in the same way that factual determinations are. Rather, "the notion that the law is definite and knowable" sits at the foundation of our legal system. And it is courts, not officers, that are in the best position to interpret the laws.
She also argued that the majority's approach is a blow to civil liberties and police-community relations, and that it has "the perverse effect of preventing or delaying the clarification of the law."
Friday, December 12, 2014
The Ninth Circuit, sitting en banc, this week affirmed a lower court's $300,000 puntive damage verdict in a Title VII sexual harassment case in which the court awarded no compensatory damages and just $1 in nominal damages.
The ruling distinguishes BMW v. Gore, the 1996 case in which the Supreme Court ruled that excessive punitives could violate due process. Gore involved a common law tort claim with no statutory cap on punitive damages. This case, State of Arizona v. ASARCO LLC, in contrast, involved a Title VII claim with a statutory cap on both compensatories and punitives. That difference, the statutory cap, drove the result.
The case arose out of a sexual harassment complaint by an employee at ASARCO's Mission Mine complex in Sahuarita, Arizona. The plaintiff alleged that during her time at ASARCO she was subjected to sexual harassment, retaliation, intentional infliction of emotional distress, and was constructively discharged.
The jury awarded no compensatory damages, but awarded $1 in nominal damages and $868,750 in punitives. The trial court later reduced the punitives to $300,000, the statutory max for a Title VII claim. (The court also awarded attorneys' fees and costs in the amount of $350,902.75.) ASARCO appealed, arguing that the punitive damage award violated Gore.
The Ninth Circuit rejected that argument. The court said that because Title VII caps both compensatories and punitives, a punitive damage award within the statutory cap satisfies the underlying constitutional considerations that animated Gore (even if the punitives amounted to 300,000 times the damages). In particular, the statutory cap gave the defendant fair notice of the severity of a penalty for a Title VII violation (where the defendant in Gore, a tort case, had no such fair warning), the cap sets out a clear amount, and it states the degree of culpability a defendant must have had, thus reducing the chance of random or arbitrary awards. Moreover, "Gore's ratio analysis has little applicability in the Title VII context," because the statutory cap doesn't lend itself to a ratio analysis the way a common law damage award does. (Under Title VII's caps, the punitive damages can't increase proportionally to the harm, because they're capped.)
Wednesday, December 10, 2014
The Montana Supreme Court ruled in In the Matter of the Adoption of AWS and KRS that state constitutionaly equal protection guaranteed the right to counsel for an indigent mother in a private termination-of-parental rights proceeding.
The ruling means that poor parents in Montana now have a constitutional right to an appointed attorney to represent them in private cases (like adoptions) involving the termination of their parental rights.
The ruling also illustrates how state constitutional rights can be more generous than federal constitutional rights. (Under Lassiter v. Dep't of Social Services, there is no categorical constitutional right to counsel in a termination proceeding under the Fourteenth Amendment.)
The Supreme Court applied Montana state constitutional equal protection, which the court said "provides even more individual protection than the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution."
The court noted that parents subject to state-initiated termination of parental rights (as in an abuse-and-neglect proceeding) have a state statutory right to counsel, but that parents subject to private termination of parental rights (as in an adoption, as in this case) don't. Because the underlying right--the right to parent--is fundamental, the court applied strict scrutiny to the distinction.
The court said that the only reason for not providing counsel in the private termination case was money. And that's not a sufficiently important state interest under strict scrutiny. So the indigent parent in a private termination case gets an attorney, too, as a matter of state constitutional equal protection.
The court suggested that an attorney in a state-initiated termination proceeding might be constitutionally compelled, or at least the issue raises a serious constitutional question, under the Montana constitution. (Under the Fourteenth Amendment and Lassiter v. Dep't of Social Services, there is no categorical constitutional right to counsel, and the answer depends on a Mathews v. Eldridge balancing.) This means that the state legislature can't solve the equal protection problem by taking away the statutory right to counsel for parents in a state-initiated termination proceeding; instead, it has to ratchet-up the rights of parents in a private termination proceeding.
For more information on civil right to counsel, or Civil Gideon, check out the National Coalition for a Civil Right to Counsel, an outstanding organization that is the clearinghouse for the excellent work in this area.
Tuesday, December 9, 2014
The Ninth Circuit yesterday upheld Arizona's reciprocal bar licensing rule against a host of federal constitutional claims. The ruling means that Arizona's rule stays in place.
At issue was Arizona's Rule 34(f), which permits admission to the state bar on motion for attorneys who are admitted to practice in states that permit Arizona attorneys to be admitted on a basis equivalent to Arizona's, but requires attorneys admitted to practice law in states that don't have such reciprocal admission rules to take the bar exam.
According to the National Conference of Bar Examiners and the ABA, just less than half the states and jurisdictions offer reciprocal admissions under this kind of rule.
Plaintiffs challenged the rule under the Equal Protection Clause, the Fourteenth Amendment Privileges or Immunities Clause, Article IV Privileges and Immunities, the Dormant Commerce Clause, and the First Amendment. The court rejected all of these claims.
As to equal protection, the court applied rational basis review and said that the state had legitimate interests in regulating its bar and in ensuring that its attorneys are treated equally in other states.
As to Article IV Privileges and Immunities and the Dormant Commerce Clause, the court said that the rule didn't discriminate against out-of-state attorneys--that it was a neutral rule that treated all attorneys alike--and that it advanced substantial state interests (the same as those above). The rule's neutrality also drove the result in the plaintiffs' Fourteenth Amendment privileges or immunities claim, because the right to travel isn't implicated (it can't be, if everybody is treated alike).
As to the First Amendment, the court applied the time-place-manner test and upheld the rule. The court flatly rejected the plaintiffs' right of association and right to petition claims.
December 9, 2014 in Association, Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Equal Protection, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Privileges or Immunities: Fourteenth Amendment , Speech | Permalink | Comments (0) | TrackBack (0)
Tuesday, November 25, 2014
The Georgia Supreme Court yesterday rejected claims by a group of plaintiffs that the state courts' use of private probation companies violated due process. At the same time, however, the court ruled that Georgia law and contract principles could limit the way those companies operate.
The plaintiffs in the case, a group of probationers, argued that the use of private probation companies violated due process, and that the company imposed excessive fees on them for unauthorized monitoring, testing, and tolling of their probation. The case illustrates the dangers and abuses that can come with hiring out a private company to conduct functions like probation.
The plaintiffs alleged first that Georgia's statute authorizing state courts to use private probation companies was facially invalid, because it them of liberty without due process of law. That's because the statute did not restrict the courts from arranging payment based on the length of a misdemeanant's probation and other probation-related services that the company provided (like monitoring and testing), creating a conflict of interest for the company. Moreover, plaintiffs claimed that courts relied on recommendations by private probation officers who had a pecuniary interest in the outcome.
The court rejected these claims:
While the supervision of probation is a function historically performed by state probation officers, the mere act of privatizing these services does not violate due process. Nothing on the face of the statute allows Sentinel or any other private probation company to deprivate an individual of his or her property or liberty without due process of law nor is there anything which authorizes the creation of a private probation system that is so fundamentally unfair that it fails to comport with our notions of due process. . . . As found by the trial court, most of the injuries alleged by the plaintiffs in these cases occurred not because of Sentinel's compliance with the restrictions placed upon it by the private probation statutory framework, but becasue of Sentinel's failure or the failure of its employees to abide by the limited statutory authority granted.
The court also rejected the plaintiffs' claims that the statute allowed their imprisonment for debt, in violation of the Georgia Constitution, and that a court couldn't order, and a private company couldn't use, electronic monitoring devices.
But the court ruled as a matter of statutory interpretation that Georgia law did not allow for the tolling of misdemeanor probationers' sentences. That's because misdemeanor sentences are set by statute at one year, at which point jurisdiction over the defendant ceases, and there's no statutory authority to deviate from that rule.
Finally, the court ruled, based on Sentinel's contracts, that some of the plaintiffs could recover fees paid to Sentinel for probation services during their original probation, and that others could recover fees paid after the expiration of the term of their original sentences or for electronic monitoring.
Thursday, November 20, 2014
Montana District Judge Follows Ninth Circuit: Declares State's Same Sex Marriage Ban Unconstitutional
In his 18 page Order in Rolando v. Fox, US District Judge Brian Morris enjoined Montana's laws banning same-sex marriage (Article XIII, section 7 of the Montana Constitution, and Montana Code Annotated section 40-1-103 and section 40-1-401) as unconstitutional under the Fourteenth Amendment's Equal Protection Clause.
The judge essentially found that the Ninth Circuit's decision in Latta v. Otter regarding same-sex marriage - - - inclusive of its decision to adhere to heightened scrutiny in SmithKline Beecham Corp. v. Abbott - - - was binding. The court rejected the argument that the recent Sixth Circuit opinion in DeBoer v. Snyder changed Ninth Circuit precedent.
The judge, however, did discuss the state's asserted justifications, finding them with without merit and focusing on children. The judge ended by recognizing "that not everyone will celebrate this outcome," but nevertheless that the "time has come for Montana to follow all the other states within the Ninth Circuit": "Today Montana becomes the thirty-fourth state to permit same-sex marriage."
The judge did not stay the injunction.
Friday, November 14, 2014
The D.C. Circuit today upheld HHS accommodations to religious nonprofits that object to complying with contraception requirements under agency regs and the ACA. The ruling aligns with earlier rulings from the Sixth and Seventh Circuits and means that the accommodations stay on the books. (The case is not governed by Hobby Lobby, because the plaintiffs here challenge the accommodation, not the "contraception mandate" itself. Hobby Lobby had no accommodation option.)
The case represents yet another judicial attack against the ACA and its implementation. And this issue may eventually work its way (back) to the Supreme Court. (Notre Dame filed a cert. petition in October, after losing in the Seventh Circuit.)
The case is the latest challenge to HHS regulations that allow religious nonprofits to opt-out of the "contraception mandate" by filing a form with their insurer or a letter with HHS stating their religious objection to providing contraception. (The letter to HHS is the agency's regulatory answer to the Supreme Court's action this summer that enjoined the form and held that a religious nonprofit could instead file a letter with HHS.) Plaintiffs (religious nonprofits) argue that the accommodation itself violates the RFRA (among other things), because the accommodation "triggers" the provision of contraception by third parties.
The D.C. Circuit flatly--and quite thoroughly--rejected this claim. In sum:
We conclude that the challenged regulations do not impose a substantial burden on Plaintiffs' religious exercise under RFRA. All plaintiffs must do to opt out is express what they beleive and seek what they want via a letter or two-page form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations' compliance with law in the modern administrative state. Religious nonprofits that opt out are excused from playing any role in the provision of contraceptive services, and they remain free to condemn contraception in the clearest terms. The ACA shifts to health insurers and administrators the obligation to pay for and provide contraceptive coverage for insured persons who would otherwise lose it as a result of the religious accommodation.
The court held that the accommodation was merely a de minimis requirement and not a substantial burden--and therefore not subject to RFRA's strict scrutiny. "In sum, both opt-out mechanisms let eligible organizations extricate themselves fully from the burden of providing contraceptive coverage to employees, pay nothing toward such coverage, and have the providers tell the employees that their employers play no role and in no way should be seen to endorse the coverage." The court emphasized that RFRA "does not grant Plaintiffs a religious veto against plan providers' compliance with those regulations, nor the right to enlist the government to effectuate such a religious veto against legally required conduct of third parties."
The court said that even if the accommodation were a substantial burden, the court would uphold it under RFRA's strict scrutiny. That's because "[a] confluence of compelling interests supports maintaining seamless application of contraceptive coverage to insured individuals even as Plaintiffs are excused from providing it." Examples: the benefits of planning for healthy births and avoiding unwanted pregnancy, and the promotion of equal preventive care for women. "The accommodation requires as little as it can from the objectors while still serving the government's compelling interests."
The court also clarified some important aspects of the way the accommodation works. For one, exercising the accommodation doesn't "trigger" anything; instead, it works to take the religious nonprofit entirely out of the contraception-provision business. For another, religious nonprofits' contracts with providers don't authorize or facilitate contraceptive coverage; the federal regs do. Finally, exercising the accommodation doesn't turn a religious nonprofit's plan into a "conduit for contraceptive coverage"; instead, it takes the the religious nonprofit out of the contraceptive business entirely.
Thursday, November 13, 2014
The Fifth Circuit has denied en banc review by a vote of 15-5 in its Order in Fisher v. University of Texas at Austin.
Recall that in a divided opinion in July, a Fifth Circuit panel held that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.
Recall also that the United States Supreme Court had reversed the Fifth Circuit's original finding in favor of the University (affirming the district judge) and remanded the case for a "further judicial determination that the admissions process meets strict scrutiny in its implementation." The opinion, authored by Justice Kennedy - - - with only Justice Ginsburg dissenting and Justice Kagan recused - - -specified that the "University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal" of diversity and the University should receive no judicial deference on that point.
Judge Emilio Garza, the Senior Judge who dissented from the panel opinion also wrote a very brief dissenting opinion from en banc review, which was joined by Judges Jones, Smith, Clement, and Owen. Judge Garza contends that while the "panel majority dutifully bows" to the United States Supreme Court's requirements in Fisher, it "then fails to conduct the strict scrutiny analysis" the opinion requires "thus returning to the deferential models" of Regents of University of California v. Bakke and Grutter v. Bollinger.
A petition for writ of certiorari is certain; the grant of that petition is less certain.
November 13, 2014 in Affirmative Action, Equal Protection, Federalism, Fourteenth Amendment, Opinion Analysis, Race, Recent Cases, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Wednesday, November 12, 2014
In a 26 page opinion today in Condon v. Haley, Judge Richard Mark Gergel held that South Carolina's same-sex marriage bans (by statute and state constitutional amendment) is unconstitutional.
Here is the gravamen of Judge Gergel's opinion:
This Court has carefully reviewed the language of South Carolina's constitutional and statutory ban on same sex marriage and now finds that there is no meaningful distinction between the existing South Carolina provisions and those of Virginia declared unconstitutional in Bostic.
Recall that the Fourth Circuit in Bostic v. Schaefer held that Virginia's same-sex marriage laws should be evaluated by strict scrutiny because marriage is a fundamental right; not surprisingly, the bans did not survive the standard. Recall also that the United States Supreme Court denied certiorari.
Moreover, Judge Gergel rejected the argument that "same-sex couples should not look to the courts to protect their individual rights but to the 'usually reliable state democratic processes' for relief" as the Sixth Circuit's very recent opinion upholding state prohibitions of same-sex marriage declared, by noting that the Fourth Circuit rejected this same argument.
Judge Gergel did, however, dismiss Governor Nikki Haley as a defendant. Judge Gergel noted that "simply being the state's chief executive sworn to uphold the laws is not sufficient" and there is "little evidence to support an argument that Defendant Haley has taken enforcement action or engaged in other affirmative acts to obstruct Plaintiffs' asserted fundamental right to marry. " Judge Gergel specifically distinguished Bowling v. Pence, in which a federal judge reversed a prior order dismissing the Governor of Indiana as a defendant after he took "affirmative action to enforce the statute."
Judge Gergel issued a temporary stay of the injunction until November 20, 2014.
Monday, November 10, 2014
In its opinion in Williams v. City of Cleveland, a panel of the Sixth Circuit faulted the district judge for over-extending Florence v. Board of Chosen Freeholders of County of Burlington (NJ) to include a challenge to a practice by Cleveland that "compelled pretrial detainees who were being processed into the facility to undress in the presence of other detainees and to have their naked genitals sprayed with delousing solution from a pressurized metal canister."
Recall that the United States Supreme Court in Florence upheld the authority of jail authorities to strip search a person accused of a minor crime without individualized suspicion under the Fourth Amendment. As we stated when the decision was rendered in April 2012, "Writing for the 5-4 majority, Kennedy's relatively brief opinion could be summed up in a single word: deference."
Yet that deference was not total and today's holding from the Sixth Circuit elaborates on the limits of Florence. The complaint in Williams was stayed pending resolution of Florence, and after Florence, the plaintiffs sought to amend their complaint to distinguish Florence. The district judge denied the motion to amend as "futile" because there was no real constitutional issue raised by the manner of the delousing.
Reversing, the unanimous panel of the Sixth Circuit noted that Florence "took pains to emphasize that its holding applied only to the blanket policy before it, which required a visual strip search and a compulsory shower with self-applied delousing solution." This means, according to the court, that the particular method of conducting a search must still be reasonable, and that this reasonableness is weighed against the level of intrusion.
As the panel described the allegations, the "hose treatment" included the plaintiffs being "ordered to crouch naked on the floor with several strangers in the room while corrections officers" directed a pressurized hose of delousing liquid aimed at their intimate body parts. The incident also included for one plaintiff being hosed off by another detainee and for another plaintiff, the delousing liquid "penetrating her anus." For the panel, "simply spraying the detainee with a hose as if she was an object or an animal," is problematical because
it is not obvious that it would be impracticably onerous for the jail to permit self-application of the delousing solution while reserving the “hose treatment” for instances where individual detainees misapply or refuse to properly apply the provided solution.
However, the panel noted that in "the final analysis" "the jail may have had good reasons for conducting these procedures in the particular manner in which it did." However, "that is a matter for resolution either at trial or on summary judgment, not on the pleadings."
Thus, the case will proceed at the trial level.
Friday, November 7, 2014
A day after the Sixth Circuit's divided decision upholding same-sex marriage bans in several states, and thus creating a circuit split (with the Supreme Court having denied certiorari to the Seventh, Tenth, and Fourth Circuit opinions holding to the contrary), United States District Judge Ortrie D. Smith of Missouri (and in the Eighth Circuit) has rendered an opinion in Lawson v. Kelly, finding Missouri's same-sex marriage ban unconstitutional.
Judge Smith's 18 page opinion agrees with the Sixth Circuit majority in one respect: The Supreme Court's opinion in Windsor v. United States holding DOMA unconstitutional is not dispositive. However, Judge Smith also states that the Court's 1972 dismissal in Baker v. Nelson is not dispositive.
Judge Smith holds that under Eighth Circuit precedent, sexual orientation "is not a suspect class and that classifications based on sexual orientation are not subject to heightened review of any kind." On that basis, he grants judgments on the pleadings to the defendants.
However, Judge Smith holds that the same-sex marriage bans are unconstitutional under the Fourteenth Amendment. First, Judge Smith concludes that marriage is a fundamental right under the Due Process Clause, even as he notes that not all regulations of marriage are subject to strict scrutiny. Following Zablocki v. Redhail, however, he applies the "interfere directly and substantially with the right to marry" standard and concludes that the "prohibition must be examined with strict scrutiny, and viewed in that light the restriction fails to satisfy the Due Process Clause’s dictates."
Additionally, Judge Smith analyzes the same-sex marriage ban under the Equal Protection Clause as a classification based on gender:
The restriction on same-sex marriage is a classification based on gender. The State’s “permission to marry” depends on the gender of the would-be participants. The State would permit Jack and Jill to be married but not Jack and John. Why? Because in the latter example, the person Jack wishes to marry is male. The State’s permission to marry depends on the genders of the participants, so the restriction is a gender-based classification.
As Judge Smith avers, "Restrictions based on gender are subject to intermediate scrutiny." He finds the standard is not satisfied:
The State has not carried its burden. Its sole justification for the restriction is the need to create rules that are predictable, consistent, and can be uniformly applied. Assuming this is a valid justification for a restriction, there is no suggestion as to why the gender-based classification is substantially related to that objective. A rule that ignores gender would be just as related to that objective and be just as easy to apply (and arguably would impose less of a burden on the Recorders of Deeds because they would not have to conduct any gender-based inquiry whatsoever). Regardless, administrative convenience is not a valid reason to differentiate between men and women.
Judge Smith therefore concluded that "section 451.022 of the Revised Missouri Statutes and Article I, section 33 of the Missouri Constitution, and any other provision of state law that precludes people from marrying solely because they are of the same gender violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment" and enjoined state officials from declining to issue same-sex marriage licenses although the Judge stayed the "effects of the judgment" until the judgment is final.
November 7, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Thursday, November 6, 2014
The Sixth Circuit's opinion today in DeBoer v. Snyder upheld the constitutionality of the same-sex marriage bans in several states, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee.
The majority opinion, authored by Judge Jeffrey Sutton and joined by Judge Deborah Cook begins by invoking judicial restraint and democratic processes: "This is a case about change—and how best to handle it under the United States Constitution." Such an opening may not be surprising given Judge Sutton's published views such as this from a Harvard Law Review piece favoring "a return to a world in which the state courts and state legislatures are on the front lines when it comes to rights innovation."
Dissenting, Judge Martha Craig Daughtrey, begins with a scathing assessment of Judge Sutton's opinion:
The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment.
For the majority, the operative precedent is Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question." The opinion distinguishes Windsor v. United States as limited to the federal government. The opinion also rejects the relevance of the Supreme Court's denial of certiorari from circuit decisions finding same-sex marriage bans unconstitutional: "The Court’s certiorari denials tell us nothing about the democracy-versus-litigation path to same-sex marriage, and they tell us nothing about the validity of any of these theories."
The majority also rejects the persuasive value of the opinions from the other circuits, again returning to the judicial restraint perspective:
There are many ways, as these lower court decisions confirm, to look at this question: originalism; rational basis review; animus; fundamental rights; suspect classifications; evolving meaning. The parties in one way or another have invoked them all. Not one of the plaintiffs’ theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.
In considering rational basis review (under either equal protection or due process), the majority finds that states can rationally incentivize marriage for heterosexual couples who "run the risk of unintended offspring" and that states might rationally chose to "wait and see" before changing the definition of marriage.
In considering animus (which might heighten the rational basis review to rational basis "plus"), the majority distinguishes both City of Cleburne v. Cleburne Living Center and Romer v. Evans, stating that the state-wide initiatives banning same-sex marriage merely "codified a long-existing, widely held social norm already reflected in state law," rather than being novel acts of animus. Indeed, the majority states
What the Court recently said about another statewide initiative that people care passionately about applies with equal vigor here: “Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.” Schuette v. Coal. to Defend Affirmative Action[BAMN].
Moreover, in another portion of the opinion the majority addresses the possibility of heightened review under the Equal protection Clause based on level of scrutiny to be applied to sexual minorities and invokes Carolene Products. For the majority, the issue of political power is the key rationale for denying heightened scrutiny:
The Fourteenth Amendment does not insulate influential, indeed eminently successful, interest groups from a defining attribute of all democratic initiatives—some succeed, some fail—particularly when succeeding more and failing less are in the offing.
And in considering fundamental right to marriage under the Due Process Clause, the majority concluded marriage is not a fundamental right, distinguishing Loving v. Virginia as a case that "addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage." Moreover, if marriage were a fundamental right, this would call into question laws regarding divorce, polygamy, and age requirements.
The majority also rejects the "right to travel" argument as a rationale for recognizing valid out of state marriages.
Additionally, the majority articulates its constitutional interpretative strategies. In section B, entitled "Original meaning" and in Section G, entitled "Evolving meaning," the majority is very clear that one theory is more consistent with its view of judicial restraint.
The Sixth Circuit - - - as many predicted - - - has now created a split in the circuits on the question of the constitutionality of same-sex marriage bans. The plaintiffs, who prevailed in the district court cases below, are sure to petition for certiorari to the United States Supreme Court, perhaps bypassing seeking en banc review by the Sixth Circuit.
November 6, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, Fundamental Rights, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Tuesday, November 4, 2014
In a 38 page opinion in Marie v. Moser, Judge Daniel Crabtree held that Kansas' state constitutional provisions and statutes prohibiting same-sex marriages violates the Fourteenth Amendment.
This is not surprising given the Tenth Circuit's opinions in Bishop v. Smith (finding Oklahoma's same-sex marriage prohibition unconstitutional) and Kitchen v. Herbert (finding Utah's same-sex marriage prohibition unconstitutional and the United States Supreme Court's denial of certiorari in these cases a month ago. As Judge Crabtree states: "When the Supreme Court or the Tenth Circuit has established a clear rule of law, our Court must follow it."
First, why is the opinion 38 pages? Shouldn't this opinion be more like last month's four page opinion by the Arizona federal judge stating that it is bound by the Circuit opinion? And indeed, Judge Crabtree's analysis of the Circuit precedent is relatively brief. However, Judge Crabtree's opinion also contains not only a brief discussion of the parties and the challenged laws, but a careful consideration of a variety of other matters including those related to justicability and jurisdiction:
- Standing (generally focusing on redressability, but including a claim that because the plaintiffs are a same-sex female couple, they cannot argue the constitutionality of the Kansas laws as applied to same-sex male couples);
- Eleventh Amendment
- Domestic Relations Exception to federal court jurisdiction
- Absention (including Pullman, Younger, Colorado River, Burford, Rooker-Feldman)
Additionally, Judge Crabtree considered an argument that the correct precedent was not the Tenth Circuit opinion, but a Kansas state court opinion (to which the United States Supreme Court denied certiorari).
Judge Crabtree rejected all of these arguments, but in a careful and considered manner.
Second, why did Judge Crabtree grant a stay to the defendants? Judge Crabtree's answer is related to the length of the opinion. He states that although
the Tenth Circuit has settled the substance of the constitutional challenge plaintiffs’ motion presents. And under the Circuit’s decisions, Kansas law is encroaching on plaintiffs constitutional rights. But defendants’ arguments have required the Court to make several jurisdictional and justiciability determinations, and human fallibility is what it is; the Circuit may come to a different conclusion about one of these threshold determinations. On balance, the Court concludes that a short-term stay is the safer and wiser course.
Thus Judge Crabtree stayed the injunction until November 11, unless the defendants inform the court they will not appeal. Perhaps the state officials in Kansas will conclude that it would be a waste of taxpayers' money as did the state officials in Arizona. Or perhaps not.
Tuesday, October 28, 2014
Judge Reggie B. Walton (D.D.C.) yesterday dismissed an action by True the Vote against the IRS for politicized foot-dragging on its 501(c)(3), not-for-profit application. The ruling ends True the Vote's case against the IRS, with very little chance of a successful appeal.
True the Vote sued the IRS after the agency took a long time with its 501(c)(3) application and requested additional information from the organization before granting not-for-profit status. True the Vote argued that the IRS did this because True the Vote was a politically conservative organization aligned with the Tea Party, in violation of the First Amendment, the IRC, and the APA.
But Judge Walton dismissed the organization's claims for declaratory and injunctive relief as moot, after the IRS ultimately granted 501(c)(3) status, leaving nothing more for the court to order in terms of relief. The court also ruled that the "voluntary cessation" exception didn't apply, because the IRS, by the plaintiff's own reckoning (and the court's judicial notice), "suspended" its "targeting scheme" on June 30, 2013, and wouldn't re-engage in the footdragging.
Judge Walton dismissed the plaintiff's claim for monetary relief, ruling that there's no Bivens remedy, because the IRC already provides a comprehensive statutory remedial scheme. (It didn't matter that the plaintiff didn't like the scheme, only that it existed.)
Finally, Judge Walton dismissed the plaintiff's statutory claim that the IRS requested and inspected more information than necessary from True the Vote, because the IRC allows it to do that.
True the Vote can appeal, but Judge Walton's ruling is likely to be upheld.
Wednesday, October 22, 2014
In his opinion in Conde-Vidal v. Garcia-Padilla, United States District Judge for the District of Puerto Rico Juan Perez-Gimenez dismissed the constitutional challenge to Puerto Rico's law defining marriage as "man and woman" and refusing recognition to marriages "between persons of the same sex or transexuals."
In large part, Judge Perez-Gimenez relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question." For Judge Perez-Gimenez, this dismissal remains binding precedent for several reasons. Judge Perez-Gimenez finds that Baker remains good law despite the "nebulous 'doctrinal developments" since 1972. He rejects the precedential value of Windsor v. United States in this regard: "Windsor does not - - - and cannot - - - change things." He acknowledges and cites authority to the contrary, but finds it unpersuasive. He specifically rejects the relevance of the Supreme Court's denial of certiorari from circuit decisions finding same-sex marriage bans unconstitutional in light of the more solid precedent of Baker v. Nelson.
Judge Perez-Gimenez also grounds his adherence to Baker v. Nelson on the First Circuit's opinion in Massachusetts v. HHS, finding DOMA unconstitutional. The First Circuit's discussion of Baker v. Nelson is somewhat unclear, but Judge Perez-Gimenez rejects the argument that they are dicta and further reasons even if the statements are dicta, "they would remain persuasive authority, and as such, further support the Court's independent conclusions about, and the impact of subsequent decisions on, Baker."
Judge Perez-Gimenez articulates a perspective of judicial restraint, articulating deference to the democtratic institutions of Puerto Rico and adherence to stare decisis. But in the opinion's conclusion, he makes his own views clear:
Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law. Traditional marriage is “exclusively [an] opposite-sex institution . . . inextricably linked to procreation and biological kinship,” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). Traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.
Those are the well-tested, well-proven principles on which we have relied for centuries. The question now is whether judicial “wisdom” may contrive methods by which those solid principles can be circumvented or even discarded.
A clear majority of courts have struck down statutes that affirm opposite-gender marriage only. In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage. And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity? Is “minimal marriage”, where “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties” the blueprint for their design? *** It would seem so, if we follow the plaintiffs’ logic, that the fundamental right to marriage is based on “the constitutional liberty to select the partner of one’s choice.”
Undoubtedly, this issue is on its way to the First Circuit. The states in the First Circuit - - - Rhode Island, Massachusetts, New Hampshire, and Maine - - - all have same-sex marriage without federal court decisions, so this decision from the District of Puerto Rico will provide the First Circuit the opportunity to reconsider Baker v. Nelson and the applicability of its DOMA decision, Massachusetts v. Gill.
Although perhaps the challengers to the same-sex and "transsexual" marriages might seek to have the issue decided by the Puerto Rican Supreme Court.
Monday, October 20, 2014
First Circuit Finds Billboard Company has Standing in First Amendment Challenge to Massachusetts Scheme
Reversing the district judge, a unanimous panel of the First Circuit held that a billboard company had standing to challenge the Massachusetts regulatory scheme in Van Wagner Boston LLC v. Davey. The opinion, authored by Judge Bruce Selya who is known for his ambitious language, concludes that
the complaint plausibly alleges that the plaintiffs are subject to a regulatory permitting scheme that grants an official unbridled discretion over the licensing of their expressive conduct and poses a real and substantial threat of censorship. No more is exigible to give the plaintiffs standing to proceed with their challenge.
The First Circuit largely relied on City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) in which the Court held unconstitutional a municipal scheme giving the mayor the power to grant or deny applications for annual permits to publishers to place their newsracks on public property; the Court allowed the publishers to proceed with the facial challenge although they had not yet applied for a permit. The First Circuit thus rejected Massachusetts' claim that the company could not show injury in fact because the company "had applied for over seventy permits without having a single application denied." For the court, it was "too optimistic" to think that the "censorship risks are only theoretical." Instead, it noted that the company "is a large, repeat player in the world of outdoor advertising" and "it may plausibly fear incurring the Director's ire any time an existing or potential client seeks to display what might be deemed a controversial message."
The First Circuit also rejected Massachusetts' argument that the "case implicates strictly commercial speech" and thus a lesser standard should apply:
The factual premise of the Commonwealth's thesis is simply wrong. It confuses a recognized category of First Amendment analysis — commercial speech simpliciter — with something quite different: those who have a commercial interest in protected expression.
The court ends its opinion with the statement that it expresses "no opinion on the merits of Van Wagner's First Amendment claim."
To say more about standing would be supererogatory. The short of it is that Van Wagner has plausibly alleged that it is subject to a regulatory permitting scheme that chills protected expression by granting a state official unbridled discretion over the licensing of its expressive conduct. It follows — as night follows day — that Van Wagner has standing to mount a facial challenge to that regulatory permitting scheme.
The court mentioned but stated it was not considering Massachusetts' argument that the scheme's numerous factors howed that the discretion was not unbridled but properly cabined. The district judge will now be taking up this very question under First Amendment doctrine.
Thursday, October 16, 2014
The Arkansas Supreme Court yesterday struck the state's voter ID requirement under the state constitution. The unanimous ruling means that Arkansas will not use Act 595's voter ID requirements in the upcoming elections.
The ruling is based on state constitutional law only, and therefore won't and can't be appealed to the United States Supreme Court.
The state high court ruled that Act 595's voter ID requirement added a voter requirement to those set in the state constitution. Arkansas's constitution, art. 3, Section 1, says,
Except as otherwise provided by this Constitution, any person may vote in an election in this state who is:
(1) A citizen of the United States;
(2) A resident of the State of Arkansas;
(3) At least eighteen (18) years of age; and
(4) Lawfully registered to vote in the election.
The court said, "These four qualifications set forth in our state's constitution simply do not include any proof-of-identity requirement." The court struck Act 595 on its face.
The court also rejected the argument that voter ID was simply a procedural method of identifying a voter, and therefore constitutional under a state constitutional provision allowing such methods:
We do not interpret Act 595's proof-of-identity requirement as a procedural means of determining whether an Arkansas voter can 'lawfully register to vote in the election.' Ark. Const. art. 3, Sec. 1(4). Under those circumstances, Act 595 would erroneously necessitate every lawfully registered voter in Arkansas to requalify themselves in each election.
Justice Courtney Hudson Goodson concurred in the result, but because Act 595 failed to get a two-thirds majority vote in both houses of the legislature as required by a 1964 amendment to the constitution that sets the requirements for identification and registration of voters (and does not include photo ID) and allows for legislative amendment of those requirements if the legislature votes by two-thirds in both houses.
Tuesday, October 14, 2014
On Sunday afternoon before a Monday federal holiday, federal district judge Timothy Burgess of the District of Alaska issued an opinion in Hamby v. Parnell and immediately enjoined officials of the state of Alaska from enforcing either the statute or state constitutional provision barring same-sex marriages.
Judge Burgess' 25 page opinion predictably relied upon the Ninth Circuit's decision in Latta v. Otter concluding that the same-sex marriage bans of Idaho and Nevada violated the Equal Protection Clause and using the Circuit's heightened scrutiny standard for sexual orientation. Judge Burgess also found that the Alaska laws violated the Due Process Clause because they infringe on the "fundamental right to choose whom to marry."
In the Due Process discussion, Judge Burgess has an interesting invocation of originalism:
In Lawrence [v. Texas], the critical mistake identified by the Supreme Court in its earlier reasoning [in Bowers v. Hardwick] is the same error made by Defendants in this case: in the desire to narrowly define the rights protected by the Fourteenth Amendment, they “fail to appreciate the extent of the liberty at stake.”
Our forefathers wrote the Bill of Rights hundreds of years ago and could not have predicted “the components of liberty in its manifold possibilities” as we see today. As the Supreme Court articulately explained, “those who drew and ratified the Due Process Clause...knew times can blind us to certain truths and later generations can see that laws once necessary and proper in fact only serve to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” The Plaintiffs in this case do not ask the Court to recognize an entirely new fundamental right to same-sex marriage; rather, Plaintiffs wish to participate in the existing liberty granted to other couples to make a deeply personal choice about a private family matter.
Alaska has filed an Emergency Motion for Stay Pending Appeal, arguing in part that there is a "reasonable likelihood the Ninth Circuit will rehear Latta en banc and thus vacate the panel's decision." This is largely based on the Ninth Circuit's application of heightened scrutiny in the panel opinion.
But recall that this heightened scrutiny is based on SmithKline Beecham Corp. v. Abbott Labs, decided 10 months ago and which was denied a rehearing en banc.
And recall also that while Justice Kennedy of the United States Supreme Court granted a stay of Latta, he later clarified that the stay was only as to Idaho and not Nevada (although the Ninth Circuit's heightened scrutiny standard was applied to the laws of both states), and the stay vacated on Friday.
Additionally, Alaska argues that "conditions compelling Supreme Court review of this issue could easily develop very soon." Recall that the Supreme Court denied certiorari of the decisions from three circuits finding same-sex marriage bans unconstitutional. As Alaska argues:
The Sixth Circuit heard argument in early August regarding cases14 from four states (Michigan, Kentucky, Tennessee, and Ohio) and could issue a decision at any time, and the Fifth Circuit has expedited argument of Louisiana and Texas cases and could issue a decision by end of this year. Accordingly, circumstances are likely to develop in which the Supreme Court is virtually obligated to review the issue.
Yet given the lack of endurance of previous stays, there is little reason to believe Alaska would be considered a different case.
October 14, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)