Monday, August 18, 2014
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.
Thursday, August 14, 2014
ConLaw Profs Pen Letter Criticizing University of Illinois Rescission of Offer to Academic for Tweets
When University of Illinois at Urbana-Champaign officials decided to rescind the offer of a tenured faculty appointment to Steven G. Salaita shortly before he was to begin, they must have known there would be controversy. Salaita himself has been no stranger to controversy while at Virginia Tech, but UI officials have focused on his recent tweets on the subject of Gaza.
While Salaita's area is not law, it's difficult not to be reminded of a similar situation involving Erwin Chemerinsky seven years ago. The new law school at UC-Irvine offered him a position as Dean but then rescinded it after reading his newest op-ed, this one criticising a plan by then Attorney General Alberto Gonzales regarding death row appeals.
There was much "outcry" over the Chemerinsky "rescission" (and of course Chemerinsky became Dean, a position he retains).
There is a good deal over Salaita. Peter Schmidt has a good discussion of the Salaita controversy for The Chronicle of Higher Education, with a follow up article noting that 300 scholars have vowed to boycott events at the university unless it rescinds its rescission.
Dorf and Katherine Franke have penned a five page Letter to the Chancellor of U of I from "scholars of free speech and constitutional law" discussing the First Amendment and urging the appointment be honored.
Faculty members who would like to be signatories should contact Katherine Franke by email: kfranke (AT) law.columbia.edu.
Wednesday, August 13, 2014
Judge Thomas D. Schroeder (M.D. N. Carolina) rejected the plaintiffs' motions for a preliminary injunction against portions of the North Carolina Voter Information Verification Act. But at the same time, Judge Schroeder rejected the state's motion to dismiss the case. The ruling means that the case will go forward, but the law will stay in place in the meantime. That'll give the plaintiffs a second bite at the apple, later, at trial; but the voting changes in the law will affect the upcoming fall elections.
Recall that North Carolina, a previously partially covered jurisdiction under Section 5 of the Voting Rights Act, moved swiftly to tighten its voting laws, and to impose new restrictions on voting in the state, right after the Supreme Court struck Section 5 in Shelby County. Plaintiffs immediately filed suit, challenging some of these restrictions under Section 2 of the VRA, and the Fourteenth, Fifteenth, and Twenty-Sixth Amendments. The United States filed its own case making similar arguments and asking the court for appointment of federal observers to monitor future elections in North Carolina under Section 3 of the VRA. The court consolidated the cases.
The plaintiffs, taken together, challenged these provisions: Reduction of early voting from 17 to 10 days; elimination of same-day registration during the early voting period; a prohibition on the counting of provisional ballots cast outside of a voter's correct voting precinct on Election Day; expansion of allowable poll observers and voter challenges; elimination of discretion of county boards of election to keep polls open an additional our on Election Day in "extraordinary circumstances"; and elimination of pre-registration of 16- and 17-year olds.
In a lengthy and detailed ruling, Judge Schroeder concluded that the plaintiffs stated a claim (and thus denied the defendant's motion to dismiss), but didn't demonstrate a strong enough likelihood of success (on their challenge to the same-day registration and out-of-precinct provisional voting claims) or irreparable harm (on the other claims) to qualify for a preliminary injunction:
The only election slated before trial is the November 2014 general election. As to [the Act's] reduction of early-voting days from 17 to ten, the parties acknowledge, and history demonstrates, that turnout for the fall election will likely be significantly lower than that in presidential years. The evidence presented, in light of the law's requirements for counties to provide the same number of aggregate voting hours as in the comparable previous election under prior law, fails to demonstrate that it is likely the State will have inadequate polling resources available to accommodate all voters for this election. The court expresses no view as to the effect of the reduction in early voting on other elections. As to the voter ID provisions, Plaintiffs only challenged the "soft rollout," which the court does not find will likely cause irreparable harm, and not the photo ID requirement, as to which the court also expresses no view.
Judge Schroeder also rejected the governments request for appointed observers.
Still, Judge Schroeder recognized the strength of the plaintiffs' claims in light of North Carolina's history, at one point writing, "Simply put, in light of the historical struggle for African-Americans' voting rights, North Carolinians have reason to be wary of changes to voting laws."
In his essay Justice Clarence Thomas's Korematsu Problem, forthcoming in Harvard Journal of Racial & Ethnic Justice and available on ssrn, ConLawProf Mark Kende suggests that Justice Thomas actually endorses one of the most reviled Supreme Court opinions, Korematsu v. United States (1944), in which the Court upheld the internment of citizens of Japanese ancestry even as it noted that race-based classifications deserved strict scrutiny.
Kende focuses on Thomas's dissents in Hamdi v. Rumsfeld (2004) and Johnson v. California (2005) to argue that Thomas's views are consistent with a Korematsu-approving jurisprudence in which government power to enact security concerns trumps color-blindness principles.
Worth a read as we consider executive power and questions of nationality and race in the news.
Without analysis, the Fourth Circuit today in Bostic v. Schaeffer entered its Order denying the stay of its opinion that Virginia's ban on same-sex marriage violates the Fourteenth Amendment.
Here's the text of the Order:
Upon consideration of submissions relative to the motion to stay mandate, the court denies the motion.
Entered at the direction of Judge Floyd with the concurrence of Judge Gregory. Judge Niemeyer voted to grant the motion.
The 2-1 division of the panel is the same as the division in the opinion on the merits, which we analyzed here.
The saga will undoubtedly continue.
Tuesday, August 12, 2014
Kelly A. Behre's forthcoming article, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, 21 Wm. & Mary J. Women & L. (forthcoming 2014), available at SSRN, is the topic of my piece for JOTWELL: Things We Like Lots in the Equality section. I think that
Behre’s article is worth reading for its “deep dig” into the reality, rhetoric, and social science of “fathers’ rights.” Gender equality in family law remains worthy of our attention. But Behre’s article is also worth reading for its applicability to issues involving “reverse discrimination,” “color-blindness,” or formal equality, in which similar empirical underpinnings promote continued subordination. Digging beneath the equality rhetoric does not only unearth profound differences in the meanings of equality, it may also surface a dirty study.
If nothing else, Behre's careful tracing of incorrect citations and descriptions will make one want to double-check those sources in one's latest writing.
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.
The 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.
Monday, August 11, 2014
Inspired by the successful - - - and fun! - - - Feminist Judgments in the UK, the American version of Feminist Judgments is seeking contributors. [update: And be sure to check out the terrific Canadian version here, which was the inspiration for the UK version].
Here's the call:
The U.S. Feminist Judgments Project seeks contributors of revised opinions and commentary for an edited collection entitled Feminist Judgments: Rewritten Opinions of the United States Supreme Court. This edited volume is a collaborative project among feminist law professors and others to rewrite, from a feminist perspective, key Supreme Court decisions relevant to gender issues. Editors Kathy Stanchi, Linda Berger and Bridget Crawford seek prospective authors for 20 to 25 rewritten Supreme Court opinions covering a range of topics including reproductive rights, equal protection, the state’s use of criminal power, privacy, the family, women’s political participation, Title IX, employment discrimination and substantive due process.
The editors also seek authors for commentaries of 1,500 to 2,500 words to put into context each of the rewritten cases.
The U.S. Feminist Judgments project was inspired by the successful collection and publication in Britain of FeministJudgments: From Theory to Practice, edited by Rosemary Hunter, Clare McGlynn, and Erika Rackley. This volume, which included feminist versions of twenty-three key British decisions from the Court of Appeal and House of Lords, was published in 2010 and has been very well received.
Like the sister project in Britain, the U.S. Feminist Judgments Project endeavors to pioneer “a new form of critical socio-legal scholarship” that illustrates how cases could have been decided differently had afeminist method been employed. We believe that U.S. Supreme Court law is ripe for this kind of scholarly treatment.
Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten opinions should fill out an application here:
Applicants may indicate their preferences among the list of cases. Applicants also may suggest other cases for rewriting. The tentative cases were chosen with the input and advice of an Advisory Panel of distinguished U.S. scholars including Kathryn Abrams, Katharine Bartlett, Devon Carbado, Mary Anne Case, Erwin Chemerinsky, April Cherry, Kimberlé Crenshaw, Martha Fineman, Margaret Johnson, Sonia Katyal, Nancy Leong, Catharine MacKinnon, Rachel Moran, Melissa Murray, Angela Onwuachi-Willig, Nancy Polikoff, Dorothy Roberts, Dan Rodriguez, Susan Ross, Vicki Schultz, Dean Spade, Robin West, and Verna Williams.
Over at SLATE, Dahlia Lithwick argues that Justice Breyer is an underappreciated feminist:
Breyer is without a doubt the most ardent believer in government, systems, democracy, and in the American public. . . .
But Breyer is also a feminist . . . [and] Breyer, like David Souter and John Paul Stevens and William J. Brennan and many men before him, has been a staunch defender of women’s rights and freedoms for a long time, often without getting too much credit, especially from the ladies.
Worth a read.
Here's the call for what looks like an important conference:
Call for Papers
The staff of the Lincoln Memorial University Law Review invites submissions related to its Spring 2015 Symposium entitled “The Snowden Effect: The Impact of Spilling National Secrets.” The Symposium will be held on Friday, January 30, 2015 at the LMU-Duncan School of Law in downtown Knoxville, Tennessee.
The LMU Law Review’s goal for the Symposium is to facilitate discussion among scholars and practitioners regarding the implications of the national security disclosures by former government contractor Edward Snowden. Topics will include, but not necessarily be limited to: the protection of government sources and methods; Fourth Amendment and privacy issues; the effect of the Snowden disclosures and other such security leaks on U.S. foreign policy, particularly or relationships with our allies; surveillance state concerns; and the classification of government material.
The LMU Law Review will publish a dedicated symposium issue related to the Symposium’s theme. The Law Review welcomes submissions for this specially-themed issue, which will be comprised of several articles, notes, and essays bringing together leading experts on the theory, application, and scholarly analysis of these contemporary national security issues.
To be considered for publication in the symposium issue, please submit by October 15, 2014: (1) an abstract or a draft article; and (2) a curriculum vitae (CV). Participation in the Symposium is not a requirement for publication in the symposium issue. All materials should be submitted through the LMU Law Review’s website.
For more information contact the Editor in Chief of the law review at jacob.baggett (AT)lmunet.edu.
Thursday, August 7, 2014
Call for Presentations and Papers
Association of American Law Schools
AALS Workshop on Next Generation Issues on
Sex, Gender and the Law
June 24-26, 2015
Doubletree by Hilton at the Entrance to Universal Studios
Here's the CFP:
After more than forty years of formal sex equality under the law, this 2015 workshop will ask legal academics to look ahead to the future and identify, name, and analyze the next generation of legal issues, challenges, and questions that advocates for substantive gender equality must be prepared to consider. To this end, we seek paper and presentation proposals that not only pinpoint and examine future law-related concerns about gender equality but that also provide innovative new approaches to achieving equality for women and those who challenge gender norms in our society, with a particular attention to employment, violence against women, reproductive rights, women's poverty, and women in legal education.
Our hope is to build on the insights of the participants in the 2011 AALS Workshop on Women Rethinking Equality by exploring new and forward-looking ideas for scholarship, law reform, and advocacy that can bring about women's equality. An additional expectation is that each session will address the ways in which characteristics other than gender, including race, sexual orientation, immigration status, socioeconomic class, and disability, impact women's lives. We also anticipate that each session will analyze the institutional strengths and weaknesses of courts, legislatures, and administrative bodies for bringing about change and offer suggestions for legal reforms that can better meet women's needs. Our final goal is to provide a rich and supportive atmosphere to foster mentoring and networking among teachers and scholars who are interested in women's equality and the law.
The format of the workshop will involve plenary sessions, concurrent sessions drawn from this Call for Presentations and Papers, and a closing panel. The closing panel, also drawn from this Call, will consist of a brainstorming session to consider projects and proposals for proactive measures to bring about gender equality.
The concurrent sessions will feature presentations related to gender equality issues, with preference given to presentations by junior scholars and those proposals related to the topics of employment, violence against women, reproductive rights, women's poverty, and women in legal education. We will organize the presentations into panels based on the subject matter of the proposals. Each presentation will last for 15 minutes, followed by questions from the moderator and audience.
Interested faculty should submit a brief written description (no more than 1000 words) of the proposed presentation, along with his or her resume. Please e-mail these materials to email@example.com by September 15, 2014. We will notify selected speakers by November 1, 2014.
The final plenary session of the conference will consist of 10-12 five-minute presentations of ideas for future projects that will advance gender equality in the law. Each selected participant will be limited to five minutes to present his or her idea or project. The presentations will be followed by audience feedback and comments. Although we will grant preference to presentations by junior scholars and those proposals related to the topics of employment, violence against women, reproductive rights, women's poverty, and women in legal education for the concurrent sessions, we welcome proposals for this brainstorming session on any topic related to gender equality.
Interested faculty should submit a written description of the proposed presentation (no more than 1000 words), along with his or her resume. Please e-mail these materials to firstname.lastname@example.org by September 15, 2014. We will notify selected speakers by November 1, 2014.
Eleventh Circuit: No Preliminary Injunction for Ordinance Aimed at Curbing Loud Sounds Outside Abortion Clinics
In its opinion in Pine v. City of West Palm Beach, a unanimous Eleventh Circuit panel affirmed the district judge's refusal to enjoin the enforcement of § 34-38 of the Code of the City of West Palm Beach which bans amplified sound within 100 feet of the property line of any health care facility.
The court held that the Sound Ordinance survived the First Amendment challenge as a valid time, place, or manner restriction on speech that is content-neutral, is narrowly tailored to advance the City’s substantial interest in protecting patients, and leaves open ample alternative avenues of communication, and further that it was not unconstitutional as applied to the abortion protesters.
The court relied upon Ward v. Rock Against Racism, which upheld a sound amplification regulation. It distinguished the Court's recent declaration of unconstitutionality of an abortion clinic buffer zone in McCullen v. Coakley:
This case raises issues sharply different from those addressed recently by the Supreme Court in McCullen. There, the Supreme Court struck down a Massachusetts law that prohibited activists from standing within thirty-five feet of the driveway or entrance of a reproductive health care facility. For a number of reasons, the Court held that the restriction was not narrowly tailored to the government’s interest in preventing obstructions and congestion outside of abortion clinics. The Court explained that the Massachusetts law “unnecessarily swe[pt] in innocent individuals and their speech” by “categorically exclud[ing] non-exempt individuals from the buffer zones.” Notably, Massachusetts had failed to pursue a variety of available, less-restrictive solutions for congestion problems. Finally, the law barred access to public sidewalks and ways, “areas historically open for speech and debate.” Massachusetts had taken “the extreme step of closing a substantial portion of a traditional public forum to all speakers.”
These considerations cut the other way in this case. Instead of casting a wide net that captures innocent speech, the Sound Ordinance targets only actions near health care facilities that produce types of noise that can endanger patients. In addition, here there are no less restrictive means: because the heart of the problem is loud, raucous, or disturbing noise, a restriction on that sound is narrowly tailored. Unlike in McCullen, the record here contains no evidence of feasible alternatives that protect patient health from such sound. Finally, the Sound Ordinance in no way prevents Petitioners from accessing public ways and sidewalks near the Center. They simply cannot create loud, raucous, or unreasonably disturbing noise while there.
[citations omitted]. The court had made clear that "the City’s noise control regulations indicate that the Sound Ordinance restriction on amplified sound applies only to 'loud and raucous noise, or any noise which unreasonably disturbs, injures, or endangers the comfort, repose, health, peace, or safety' of others within a health care facility quiet zone." The court stated it the Sound Ordinance was not intended to have the "absurd" result that would prohibit "any electronic equipment that uses or produces amplified sound, from paging systems to administrators’ telephones to patient monitoring devices."
Thus construed, the court found that the Ordinance was not being enforced based on viewpoint when it was not enforced against "drive-through loudspeakers within the quiet zone by quick-service restaurants Wendy’s and Pollo Tropical." Instead, the protestors use of bullhorns was directly within the "loud and raucous noise" prohibition.
The court ended by emphasizing that the opinion was limited to the "extraordinary" remedy of a preliminary injunction and they plaintiffs were free to pursue a permanent injunction. But given that the court found that the plaintiffs did not demonstrate they had a likelihood of success on the First Amendment merits, the prospects for prevailing on those same First Amendment arguments are slight.
In a closely watched case with First Amendment implications, the New Jersey Supreme Court in State v. Skinner held in an unanimous opinion that violent rap lyrics, written by a defendant before the events that led to his indictment, may not be admitted at his criminal trial as evidence of motive and intent.
The court's opinion takes the opportunity to explicitly outline the First Amendment issue:
The New Jersey Chapter of the American Civil Liberties Union (ACLU) appears in this case as amicus curiae on behalf of defendant. The ACLU asserts that defendant’s rap lyrics are a form of artistic expression and thus are entitled to heightened protection under the First Amendment of the United States Constitution and Article I, Paragraph 6 of the New Jersey Constitution. The ACLU emphasizes that defendant’s lyrics are not akin to a diary and therefore contain limited probative value. Moreover, because rap lyrics are often a vehicle for social and political commentary, the ALCU argues that admitting defendant’s lyrics would run the risk of chilling otherwise valuable speech. Accordingly, the ACLU urges the establishment of a strict guideline against the admissibility of expressive works in a criminal trial, in light of the First Amendment protections ordinarily afforded to such works. It urges that their admissibility should be limited to situations clearly indicating that the author engaged in the crimes about which he or she has written. In the ACLU’s view, to hold otherwise would unduly discourage, or even punish, lawful expression.
[Update: The ACLU brief is available here].
However, the remainder of the opinion does not explicitly engage with the First Amendment or free speech doctrine. Nevertheless, the court's ruling is infused with free speech perspectives. After articulating its holding under the NJ rules of evidence that "violent, profane, and disturbing rap lyrics that defendant wrote constituted highly prejudicial evidence against him that bore little or no probative value on any motive or intent behind the attempted murder offense with which he was charged," the court notes that the "use of the inflammatory contents of a person’s form of artistic self-expression as proof of the writer’s character, motive, or intent must be approached with caution."
The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff,” actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. Defendant’s lyrics should receive no different treatment. In sum, we reject the proposition that probative evidence about a charged offense can be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced.
Again, while the rationale is firmly embedded in the evidentiary rules, the First Amendment perspectives are evident.
[image: Bob Marley via]
Wednesday, August 6, 2014
The D.C. Circuit ruled yesterday in Stop This Insanity, Inc., Employee Leadership Fund v. FEC that the federal restrictions on corporate PACs do not violate the First Amendment. But in the wake of Citizens United, which held that corporations didn't have to establish separate PACs to engage in political speech in the first place, the ruling probably won't much matter.
The case arose when Stop This Insanity, Inc., or "STII," a corporation, sought to establish a separate PAC to solicit and spend funds on political speech. But when STII realized that its PAC would be subject to federal regulations--in particular, restrictions on whom and when the PAC could solicit--it filed suit, arguing that the restrictions violated the First Amendment. On the other hand, STII did not complain (obviously) about the benefit its PAC received under federal regulations, that it did not have to disclose its fundraising expenses. The court summed up its claim:
Simply put, Stop This Insanity would like to use its segregated fund [its PAC] to solicit the entire public while concealing its expenses for such solicitation.
STII argued that Citizens United compelled this result. In particular, STII said that Citizens United prohibits restrictions based on distinctions between different organizational entities, and the regulations single out corporate PACs for restrictions on solicitation. STII claimed that the restrictions were therefore subject to the highest scrutiny, and failed.
The court disagreed. It said that the solicitation restrictions did not prevent a PAC from speaking (the way a corporation was prevented from speaking before Citizens United); instead, they simply regulated the speech in the nature of a disclosure. Moreover, the court noted that after Citizens United corporate PACs are functionally obsolete: they remain on the books, but they serve no particular purpose, because corporations can now spend on their own. Given that reality, restrictions on corporate PACs (which a corporation, like STII, voluntarily established) don't unduly restrict a corporation's speech, because the corporation itself can speak (with restrictions that "are less burdensome" than those on a corporate PAC). As the court said,
Despite the availability of a more robust option--at least, when it comes to independent expenditures--[STII] has decided to do things the hard way. And now, trapped in a snare it has fashioned for itself, STII decries its inability to use the [PAC] in the way it sees fit--without the limits Congress attached to the operation of these funds.
The ruling means that federal solicitation restrictions on corporate PACs stay on the books, at least unless and until the case is appealed.
But in practical terms the ruling probably won't mean much. That's because a corporation that wants to solicit and spend money for political speech today probably would opt for the more "robust option"--simply solicit and spend the money itself, the "less burdensome" way to do it--and not "do things the hard way" by establishing a corporate PAC. In other words, while corporate PACs and the restrictions on them stay on the books, it seems doubtful that any corporation today would use them for its political speech.
Monday, August 4, 2014
United States District Judge Myron Thompson, in a lengthy opinion in Planned Parenthood Southeast v. Strange, concluded that the staff-privileges requirement of Alabama’s Women’s Health and Safety Act of 2013, 1975 Ala. Code § 26-23E-4(c), is unconstitutional as applied to the plaintiffs.
In considering whether the hospital admitting privileges requirement, especially given that hospitals were not deeming physicians eligible to apply, Judge Thompson found it constituted an undue burden. He did note and rely on last week's Fifth Circuit decision in Jackson Women's Health Organization v. Currier in which the appellate court concluded that the admitting privileges requirement that would operate to close the only abortion clinic in Mississippi was an undue burden, in part because a state could not shift its responsibilities to other states.
The Alabama situation, however, was different as Judge Thompson noted:
This court does not need to resolve the legal issue of whether to consider out-of state clinics because, even if this court were to consider those clinics, it would reach the same conclusion. The out-of-state clinic nearest to any of the three cities at issue in this case is in Pensacola, Florida, approximately 50 miles away from Mobile. The Columbus, Georgia clinic is approximately 80 miles away from Montgomery. A woman in Mobile traveling to Pensacola or in Montgomery traveling to Columbus would still face the same threshold difficulties related to losing an abortion clinic in her home city; she would still have to overcome the challenges of the first 50 miles. Furthermore, the record does not support the conclusion that the Pensacola and Columbus clinics could actually accommodate an influx of patients from Alabama, and, in fact, the evidence from the Huntsville and Tuscaloosa clinics, discussed below, shows that it is not always easy for a clinic to increase capacity and suggests that the out-of-state clinics may not be able to treat large numbers of new women from Alabama.
The court also observed that if it looked outside the state's borders, it should not only look south and east but west as well. West of Alabama is Mississippi, and the court duly cites Jackson Women's Health Organization.
As the judge clarifies, he "reaches no conclusions on these matters, but hastens to point out that an out-of- state analysis is both much more complicated than the State suggests and potentially harmful, on balance, to the State’s case."
Moreover, the judge refused to deem the Fifth Circuit's decision in Abbott (on Texas's HB 2) as setting a per se rule that 150 miles of travel was not an undue burden. Instead, he found that the consideration of undue burden should be very specific and focused on the undue burden that the Alabama regulation would have on urban women rather than rural women.The court carefully considered the state's two proffered interests, the relationship of those interests, and then considered the undue burden, and anchored the conclusions in the testimony that is extensively discussed.
Friday, August 1, 2014
Affirming the opinion of United States District Judge Deborah Batts, the Second Circuit's opinion in American Atheists v. Port of Authority of NY and NJ held that there is no Establishment Clause violation when the National Museum at the former World Trade Center towers destroyed on September 11, often colloquially known as the "Ground Zero" Museum or the September 11 Museum, chose to display a large Latin cross.
Importantly, the cross is placed in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” as part of the September 11 historical narrative. On appeal, the American Atheists seemingly narrowed the original challenge and argued that the defendants "impermissibly promote Christianity in violation of the Establishment Clause and deny atheists equal protection of the laws by displaying The Cross at Ground Zero in the Museum unaccompanied by some item acknowledging that atheists were among the victims and rescuers on September 11."
The unanimous panel's 42 page opinion applies Lemon v. Kurtzman to the Establishment Clause issue and much more briefly considers the equal protection argument.
Here's the court's summary of its conclusion:
1. Displaying The Cross at Ground Zero in the National September 11 Museum does not violate the Establishment Clause because:
a. the stated purpose of displaying The Cross at Ground Zero to tell the story of how some people used faith to cope with the tragedy is genuine, and an objective observer would understand the purpose of the display to be secular;
b. an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled “Finding Meaning at Ground Zero”; the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context; and
c. there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.
2. In the absence of any Establishment Clause violation or any evidence of discriminatory animus toward atheists, the Museum did not deny equal protection by displaying The Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.
It would be doubtful if this case goes any further; the cross at the museum looks as if it is there to stay.
Wednesday, July 30, 2014
The House of Representatives voted along party lines this afternoon to authorize a federal lawsuit against President Obama for alleged constitutional overreach in implementation of the Affordable Care Act.
The case will have several problems right out of the gate, most notably standing. Here's our last post on the suit, with links to earlier posts.
Tuesday, July 29, 2014
Divided Fifth Circuit Upholds Preliminary Injunction Against Mississippi's Restrictive Abortion Law HB 1390
A panel of the Fifth Circuit in its opinion today in Jackson Women's Health Organization v. Currier upheld the district judge's injunction against the enforcement of a restrictive abortion statute known as Mississippi HB 1390.
The statute required physicians performing abortions to have admitting privileges to a nearby hospital. As the court noted, a similar provision in Texas (HB 2) was recently upheld by the Fifth Circuit in Planned Parenthood of Texas Surgical Providers v. Abbott. As to the rational basis of such a law, the panel stated it was "bound" by Abbott as precedent to accept that the Mississippi statute survives a constitutional challenge.
Regarding undue burden, however, the panel majority, in an opinion by Judge E. Grady Jolly (who interestingly hails from Mississippi) and joined by Judge Stephen Higginson, the effects of HB 1390 were relevant in this as-applied challenge. In assessing the undue burden, the court found it highly relevant that “if enforced, the admitting privileges requirement would likely require JWHO, the only currently licensed abortion facility in Mississippi, to lose its license.” The panel rejected the State's attempt to "walk back" this statement - - - which is actually a quote from the State's opening brief - - - as "too little, too late." Additionally, the majority found it important that the hospitals had rejected the physicians' applications for admitting privileges based on the fact that the physicians performed abortions.
The central - - - and exceedingly interesting - - - question of the undue burden analysis is the relevance of the clinic's status as the only abortion clinic remaining in Mississippi. The State argued that there is no undue burden because women could travel to another state and many of these distances would not be unduly burdensome in and of themselves. Recall that in Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992) the plurality opinion rejected the contention that traveling long distances constituted an undue burden. But, as Judge Jolly notes, there was no suggestion that women should have to go to neighboring states in Casey or in any other opinion, and there is at least one circuit court opinion that finds it "dispositive" that women had to leave the state to exercise their constitutional right.
Additionally - - - and this is the interesting part - - - the court relies upon State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) in the United States Supreme Court rejected Missouri's argument that its failure to admit an African-American man to its law school was essentially cured by its offer of a tuition stipend to allow Mr. Gaines to attend law school in another state. Here's the passage from Gaines that Judge Jolly finds worthy of quoting at length:
[T]he obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. . . . That obligation is imposed by the Constitution upon the States severally as governmental entities, —each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system.
Id. at 350. Judge Jolly admits that Gaines can be distinguished, but finds Gaines nevertheless determinative: " a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights."
In a lengthy and somewhat vehement dissent - - - complete with quotations from Albert Camus - - - Senior Judge Emilio Garza finds many things to criticize in the majority's opinion, including the majority's failure to recognize there is not sufficient state action for a constitutional claim (it is the hospitals denying admitting privileges rather than the statute that are the cause); the majority's failure to honor the distinction between equal protection (as in Gaines) and due process (in the abortion context); the majority's belief that there is relevance to crossing state lines (given the constitutional right to travel across state lines articulated in Saenz v. Roe); the majority's failure to recognize that Casey is nothing more than a "verbal shell game" (quoting Justice Scalia's dissent in Casey); the majority's recognition of the "liberty" interest (quotes in original) in the Due Process Clause; and the majority's participation in "aggrandizement of judicial power."
But the central issue of federalism including not only states' rights but states' responsibilities raised by this opinion and litigation is one that merits close consideration.
July 29, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Her scholarship was devoted to issues of domestic violence, sexuality, and gender. Her essay, Gender As A Core Value in Teaching Constitutional Law, 36 Okla. City U. L. Rev. 513 (2011), available in draft on ssrn, reminds us that while it may seem as if there is " ample opportunity to discuss gender when teaching equal protection and reproductive right" in Constitutional Law courses, ConLawProfs need to do more to "keep gender alive" throughout the semester. As she wrote:
Even in courses like constitutional law, it is easy to relegate gender to a few specific cases without ever asking the students to consider the more fundamental questions of how the Constitution affects women (and men) and how women (and men) affect the Constitution. But these are important questions to ask not just on Equal Protection and Women Day but throughout the entire course.
Cheryl Hanna's recent commentary on McCullen v. Coakley and Burwell v. Hobby Lobby Stores, Inc. for Vermont Public Radio can be heard here, and there is also a selection of her other commentaries, both law related and more personal.
The D.C. Circuit today rejected an Origination Clause challenge to the so-called individual mandate under the Affordable Care Act. The court also rejected a Commerce Clause challenge to the individual mandate. The ruling means that this long-shot case is dismissed.
The plaintiff in the case, Matt Sissel, argued that the individual mandate violated the Origination Clause. That Clause requires revenue-raising bills to originate in the House; it says,
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
Sissel argued that the ACA's individual mandate really originated in the Senate, not the House, and therefore violated the Clause.
The court summarily rejected that argument. The court said that the Supreme Court has given a narrow reading to the Origination Clause, applying it only to bills that "levy taxes in the strict sense of the word." But the court said that the taxing feature (or the revenue-raising feature) of the individual mandate was merely a by-product of the mandate, not the principal goal of the mandate--and therefore not a tax in the strict sence. Instead, the court said, the mandate was designed to help achieve universal health care coverage, not principally to raise revenue:
The purposive approach embodied in Supreme Court precedent necessarily leads to the conclusion that [the individual mandate] is not a "Bill for raising Revenue" under the Origination Clause. . . . And after the Supreme Court's decision in NFIB, it is beyond dispute that the paramount aim of the Affordable Care Act is "to increase the number of Americans covered by health insurance and decrease the cost of health care," not to raise revenue by means of the shared responsibility payment.
The court also rejected Sissel's Commerce Clause argument, ruling that the this argument was foreclosed by the Supreme Court's decision in NFIB, which upheld the individual mandate as a valid measure under Congress's taxing power. The court rejected Sissel's argument that his election not to purchase insurance was a violation of federal law (and therefore the federal requirement violated the Commerce Clause). Instead, the court said that under NFIB Sissel had a choice: buy insurance, or pay a tax. That's a valid exercise of the taxing power (even if it has a regulatory effect), and Sissel's argument under the Commerce Clause misses the mark.
The ruling is just the latest in a line of cases challenging different aspects of the Affordable Care Act. It's an important victory for the ACA, even if not a particularly surprising one.