January 04, 2013
NYC Bar Event on 40th Anniversary of Roe v. WadeThe Fortieth Anniversary of the United States Supreme Court's Landmark Decision, Roe V. Wade
Monday, January 14, 2013 6:30 pm-8:00 pm
2013 marks the 40th anniversary of Roe v. Wade, establishing the constitutionally-protected right to abortion. This program will discuss the evolution of the right to abortion in the courts, public opinion, and political discourse since then and will address the current status of reproductive rights in the United States, including its role in the 2012 presidential election.
Moderator: PRISCILLA SMITH, Senior Fellow at the Information Society Project at the Yale Law School
LOUISE MELLING, Director, ACLU Center for Liberty
RUTHANN ROBSON, Professor of Law & University Distinguished Professor, CUNY School of Law
KATHLEEN MORRELL, MD, Physicians for Reproductive Choice and Health
JESSICA GONZALEZ-ROJAS, Executive Director, National Latina Institute for Reproductive Health
BEBE ANDERSON, Director, U.S. Legal Program, Center for Reproductive Rights
Sponsors: Sex and Law Committee, Pamela Zimmerman, Chair
More information here.
December 26, 2012
Where Are the Guns? Constitutional Considerations of Publication of Mapped Information
An interactive map revealing gun information published by a suburban New York newspaper is causing an uproar. The newspaper explained, to "create the map, The Journal News submitted Freedom of Information requests for the names and addresses of all pistol permit holders in Westchester, Rockland and Putnam [Counties]. By state law, the information is public record."
The newspaper's actions come in the wake of renewed conversations regarding gun control and ownership. However, the disclosure of information using google maps is not new. Activists used Google maps to disclose the names, addresses, and contributions made by Californians in support of Proposition 8 that prohibited same-sex marriage. (Recall Prop 8 is now before the United States Supreme Court.)
While not using mapping applications, the Supreme Court's 2010 decision in Doe v. Reed is relevant. In Doe v. Reed, the Court 8-1 rejected a First Amendment challenge to the disclosure of names on a petition seeking a ballot initiative, again prohibiting same-sex marriage, in Washington state. Interestingly, during the oral argument, the Justices seemed often to conflate the Washington initiative with California's Proposition 8. Yet the fact that state law through its public record law was merely requiring disclosure, rather than prohibiting speech, was central to the Court's opinion that there was not a right to remain anonymous. The names were thus disclosed.
State law could, however, provide a "Firearms Ownership Privacy Act" such as those being advocated by the National Rifle Association that might seek to declare gun permits non-public records. The firearms privacy act passed in Florida, prohibiting doctors from inquiring about gun ownership, was enjoined as a violation of the First Amendment.
[image screenshot via]
November 20, 2012
District Judge to Hobby Lobby: No Substantial Burden on Religious Beliefs re: ACA Contraception Compliance
The contraception provision requirement of the ACA continues to foment litigation. However, unlike last week's decision by a federal district judge granting the preliminary injunction in favor of Tyndale House Publishers, a small Christian publishing house, yesterday a federal district judge denied a preliminary injunction sought by Hobby Lobby, a privately held corporation operating 514 arts and crafts stores in 41 states regarding the so-called "morning after" or "Plan B" contraceptive pill.
In a 28 page opinion, Judge Joe Heaton of the Western District of Oklahoma, denied Hobby Lobby's claims, as well as the claims by Mardel, a Christian supply and bookstore chain; both corporations are owned by the Green family through a management trust. Interestingly, much of the judge's analysis revolves around the identity of the plaintiffs as it relates to whether their First Amendment and RFRA are being violated.
Denying the preliminary injunction, Judge Heaton concluded:
Plaintiffs have not demonstrated a probability of success on their First Amendment claims. Hobby Lobby and Mardel, secular, for- profit corporations, do not have free exercise rights. The Greens do have such rights, but are unlikely to prevail as to their constitutional claims because the preventive care coverage regulations they challenge are neutral laws of general applicability which are rationally related to a legitimate governmental objective.
Plaintiffs also have failed to demonstrate a probability of success on their Religious Freedom Restoration Act claims. Hobby Lobby and Mardel are not “persons” for purposes of the RFRA and the Greens have not established that compliance with the preventive care coverage regulations would “substantially burden” their religious exercise, as the term “substantially burdened” is used in the statute. Therefore, plaintiffs have not met their prima facie burden under RFRA and have not demonstrated a probability of success as to their RFRA claims.
The applicability of free exercise rights and RFRA rights to corporations is resoundingly rejected by Judge Heaton. His analysis as to the persons involved does, in part, depend upon their attentuated relationship to the entities subjected to the ACA requirements.
November 15, 2012
Daily Read: Petraeus, Bork, and Privacy
Is there an analogy between the discovery and publication of list of videos that then-nominee for Justice on the Supreme Court Robert Bork checked out from a local DC store and the discovery and discussion of the gmail account of ex-CIA chief David Petraeus? Are both invasions of privacy that provoke public outrage and should lead to Congressional action to protect individual rights?
In describing the extent of the issue, he notes that "in its semiannual transparency report, Google announced this week that it receives more requests for user data from the U.S. government than any other government in the world, and that those requests rose 26 percent in the latest six-month reporting period, to nearly 8,000; the company said that it complied with 90 percent of the requests, either fully or partially."
Maas also quotes Robert Bork, not known as a friend of civil liberties, as resolutely ambivalent: "Is there too much intrusion into private lives? I can't answer that very well, because sometimes there is, sometimes there isn't."
The piece is worth a read for anyone considering how our constitutional notions of privacy shift and change.
[image: "Eavesdropping" by Vittorio Reggianini (1858–1938) via]
November 14, 2012
The Constitutional Status of Adultery in the Military
Adultery has been dominating the news, including questions about whether or not it can "still be a crime." As a constitutional matter, any answer must invoke the Court's 2003 decision in Lawrence v. Texas. Recall that Justice Scalia, dissenting, in Lawrence wrote that:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' [v. Hardwick] validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.
As Scalia recognized, Lawrence "calls into question" the criminalization of adultery. It would be very unlikely a law criminalizing adultery would survive a constitutional challenge after Lawrence.
But is the military different? Military courts held that consensual adult sodomy - - - the same crime at issue in Lawrence - - - could be criminalized as a military matter, despite Lawrence, although the application of the consensual sodomy provision could be unconstitutional as applied in certain circumstances. The central inquiry was whether there were "factors unique to the military environment" that allowed the acts to be constitutionally criminalized.
Writing in 2010, law student Katherine Annuschat, in her comment, An Affair to Remember: The State of the Crime of Adultery in the Military, 47 San Diego L. Rev. 1161, demonstrates "the military's willingness to pursue adultery prosecutions for questionable motives," and argues that "the obsolescence of these statutes in the public mind" and their questionable constitutional pedigree support removal of adultery from the enumerated offenses under the general Uniform of Military Justice article 134. Similarly, writing a year earlier, attorney Christopher Scott Maravilla, in The Other Don't Ask, Don't Tell: Adultery Under the Uniform Code of Military Justice After Lawrence v. Texas, 37 Capital U. L. Rev. 659 (2009) concluded that the criminal sanctions for adultery, as well as sodomy, should be "constructively" removed from military laws, although sexual acts could be relevant to other violations of the military code of conduct.
It is doubtful that adultery - - - without more - - - can be constitutionally criminalized, even in the military context. But perhaps there is always "more."
[image: 1926 movie poster via]
January 11, 2012
Fifth Circuit Vacates Preliminary Injunction of Texas Abortion Statute
Chief Judge of the Fifth Circuit Edith Jones, well known for her conservative affiliations, authored the panel opinion for the Fifth Circuit vacating a preliminary injunction of Texas HB 15, an Act “relating to informed consent to an abortion.” The district judge had issued a preliminary injunction against seven subsections for violating the First Amendment or Fourteenth Amendment's due process clause encompassing vagueness principles.
Judge Jones rejected the argument that the panel should defer ruling on the preliminary injunction given that the "district court has, notwithstanding this appeal, proceeded apace toward consideration of summary judgment" and therefore a "ruling on this interlocutory matter would become moot if the district court enters final judgment first." In declining to defer, Jones wrote that "this ruling will offer guidance to the district court, which is particularly important given our different view of the case." Should the district judge not hew to the Fifth Circuit's interpretation, a reversal is certain: Jones also made clear that for "the sake of judicial efficiency, any further appeals in this matter will be heard by this panel."
Texas HB 15 requires a sonogram, a display of the sonogram to the pregnant woman, make audible the heart auscultation of the fetus for the woman to hear, and explain to her the results of each procedure and to wait 24 hours, in most cases, between these disclosures and performing the abortion. A woman may only decline the explanation if her pregnancy is a result of a sexual assault or incest, she is a minor who has received a judicial bypass, or the fetus is abnormal.
The district judge found sections of HB 15 unconstitutional as compelled speech, but the Fifth Circuit's review of abortion cases led it to three conclusions:
First, informed consent laws that do not impose an undue burden on the woman’s right to have an abortion are permissible if they require truthful, nonmisleading, and relevant disclosures. Second, such laws are part of the state’s reasonable regulation of medical practice and do not fall under the rubric of compelling “ideological” speech that triggers First Amendment strict scrutiny. Third, “relevant” informed consent may entail not only the physical and psychological risks to the expectant mother facing this “difficult moral decision,” but also the state’s legitimate interests in “protecting the potential life within her.”
Applying these principles, the panel found that the sections of HB 15 "requiring disclosures and written consent are sustainable under Casey, are within the State’s power to regulate the practice of medicine, and therefore do not violate the First Amendment."
As to the three vagueness arguments under the Due Process Clause, Judge Jones found the first "novel" and "novelty suggests its weakness;" the second as not meriting the district judge's "skeptical interpretation" and that the "legislature had every right to maintain the integrity" of its statutory scheme; and the third, "at bottom, trivial."
Judge Patrick Higginbottom's brief concurring opinion is worth reading in full, both for what it says and for what it does not say. While it expresses some misgivings, it leaves little doubt of the result unless the case reaches the United States Supreme Court.
[image: Judge Edith Jones, via]
January 11, 2012 in Abortion, Cases and Case Materials, Courts and Judging, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Privacy, Reproductive Rights, Sexuality, Speech | Permalink | Comments (0) | TrackBack
December 21, 2011
The Constitutional Issues Facing Sheriff Joe Arpaio
Joe Arpaio, who styled himself as "America's toughest sheriff" in his 1997 book and the 2008 sequel is facing some tough constitutional times. As elected sheriff of Maricopa County, Arizona, Arpaio has long been controversial for his immigration and prison "get tough" stances.
The death yesterday of a Latino veteran who had been tased while in custody of the Maricopa County jails - - - informally called Arpaio's jails - - - might well result in a lawsuit.
A complaint filed yesterday on behalf of a woman who was shackled while she giving birth also addresses problems at the jails. In Mendiola-Martinez v. Arpaio, the plaintiff, a non-citizen, alleges she was imprisoned without bail for forgery when she was six months pregnant. During her labor, she was transferred to the medical center, gave birth by Cesarean section, was shackled before and after the surgery, was discharged while bleeding, shackled hands and feet, and walking through the hospital only in her hospital gown, and was taken back to jail. The complaint claims violations of the Eighth Amendment and Fourteenth Amendment regarding deliberate indifference to medical needs, cruel and unusual punishment, and a denial of Equal Protection under the Fifth, Fourteenth, and Fifteenth Amendments. The last claim alleges liability under Monell v. New York City Dept. of Social Svcs., 436 U.S. 658 (1978), including a failure to train, supervise, and discipline employees. All these claims are buoyed by disapproval of the shackling of women in labor. As a press release from Mendiola-Martinez's attorneys summarizes the law:
The American College of Obstetricians and Gynecologists and the American Medical Association oppose the shackling of women in labor or recuperating from delivery. In 2008, in Nelson v. Norris, the Eighth Circuit Court of Appeals found the shackling of women prisoners during labor to constitute cruel and unusual punishment, in violation of the Eighth Amendment. The Arizona Department of Corrections eliminated the practice of shackling women in labor or in postpartum recovery in 2003. In 2007, the United States Marshal’s Service eliminated the practice of shackling women in labor. In 2008, the Federal Bureau of Prisons eliminated the practice of shackling women in labor.
The immunity of Joe Arpaio will surely be raised by his attorneys. The extent to which Arpaio is immune was also a question before the en banc Ninth Circuit last week in the unrelated case of Lacey v. Arpaio, in which reporters for the Phoenix New Times claim a violation of their First Amendment rights based in part on their midnight arrests. The en banc hearing vacated the previous Ninth Circuit panel opinion, causing some consternation and confusion in the oral argument, available for viewing here. Here's a synposis of the problem, via the Phoenix New Times, and verifiable by the video:
24:50 -- Sheriff Arpaio's lawyer Eileen GilBride gets her turn. At about 27 minutes, she begins to be hit with questions and hypothetical situations about the possibility of a conspiracy by the county officials. This stays interesting for several minutes.
38:30 -- GilBride's blunder: She doesn't realize that New Times has alleged a conspiracy because she apparently isn't familiar enough with the case. And she forgot the document that contains the part about the conspiracy allegation.
"You come to court without briefs?" Kozinski chides, waving some papers in the air.
GilBride plunges ahead on her bad recollection until called on it by Kozinski, who informs her that the conspiracy allegation is in the suit's opening brief.
40:15 -- The dress-down: "Coming to court without the briefs is poor lawyering in itself, but not knowing what's in the briefs is even worse," Kozinski says.
This could be a useful bit for ConLawProfs mentoring or judging moot court teams.
In addition to litigation woes, Sheriff Arpaio and the Maricopa County Sheriff's Office (MCSO) is again the subject of negative Department of Justice findings. The December 15 letter concludes that the office has violated the First, Fourth, and Fourteenth Amendments to the United States Constitution, and has 60 days to take "clear steps" toward reaching an agreement with the Department of Civil Rights to remedy these violations, or there will be a civil suit seeking remedies. This letter states it is unrelated to a previous investigation that it specifically references: an investigation concluding that unconstitutional conditions existed at the jails with respect to (1) the use of excessive force against inmates and (2) deliberate indifference to inmates' serious medical needs. An agreement between the United States and MCSO was reached in October 1997. In this letter, police practices aimed at perceived immigrants are highlighted, with the letter concluding the practices " "are unconstitutional and are harming innocent Latinos."
The December 15 letter specifically focuses on Arpaio's role:
Sheriff Arpaio's own actions have helped nurture MCSO's culture of bias. For example, Sheriff Arpaio has frequently distributed racially charged constituent letters, annotating the letters with handwritten notes that appear to endorse the content of the letter, circulating the letters to others on the command staff, and/or saving the letters in his personal file. Many of these letters contain no meaningful descriptions of criminal activity-just crude, ethnically derogatory language about Latinos.
There is speculation that Arpaio will not run for relection as sheriff, as well as speculation he will run for the United States Senate.
[Photo of Joe Arpaio of Maricopa County, Arizona speaking at the Tea Party Patriots American Policy Summit in Phoenix, Arizona, by Gage Skidmore, via]
December 21, 2011 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Gender, Medical Decisions, News, Oral Argument Analysis, Privacy, Race, Reproductive Rights, Speech, Teaching Tips | Permalink | Comments (1) | TrackBack
September 26, 2011
Wisconsin Law School Conference: The Constitutionalization of Labor and Employment Law?
Wisconsin has recently been the site of several recent controversies regarding labor law, including academic labor, and the University of Wisconsin Law School Conference, The Constitutionalization of Labor and Employment Law?, on October 28-29, 2011 in Madison is sure to address some of these issues.
Additionally, the conference organizers note that recent "U.S. Supreme Court cases have contained much legal discussion at the intersection of constitutional law concepts and the law of the workplace – both in the public-sector workplace where constitutional state action exists and in the private-sector workplace where it does not. Recent cases include: Garcetti v. Ceballos, Christian Legal Society v. Martinez, City of Ontario v. Quon, NASA v. Nelson, Engquist v. Oregon Dept. of Agricultural, and Ricci v. DeStefano."
The 5 panels are Equal Protection, 13th Amendment, Workplace Privacy, Freedom of Association and Freedom of Speech.
More information, including registration information is here. The "symposium fee is waived for full-time members of academia," pre-registration is required and the deadline is October 18.
September 26, 2011 in Affirmative Action, Association, Conferences, Current Affairs, Equal Protection, First Amendment, Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Privacy, Race, Recent Cases, Scholarship, Speech, Supreme Court (US), Thirteenth Amendment | Permalink | Comments (0) | TrackBack
August 01, 2011
Planned Parenthood of Kansas v. Brownback: Federal Judge Issues Preliminary Injunction
In a Memorandum and Order today, Judge J. Thomas Marten of the United States District of Kansas, enjoined the enforcement of the Kansas defunding of Planned Parenthood statute, Section 107(l) of H.B. 2014, 84th Leg. (Kan. 2011). The judge enjoined the Kansas state defendants from any further enforcement or reliance on athe state statute and directed them to allocate all Title X funding for State Fiscal Year 2012 without reference to Section 107(l), and to provide continuation grant funding to the Planned Parenthood.
The Kansas statute, Section 107(l) of H.B. 2014, which took effect on July 1, 2011, defunds Planned Parenthood by providing that Kansas subgrants of Title X funds are "exclusively prioritized" to public entities, or secondly, to hospitals or federally-qualified health centers (FQHCs). As Planned Parenthood is a private entity which is neither a hospital nor a FQHC, it cannot successfully apply to Kansas to receive Title X funds.
Planned Parenthood argued that the statute violated the Supremacy Clause, in that in conflicted with federal law under Title X, and that the statute violated its First Amendment rights. The judge found there was a substantial likelihood of success on both of these claims.
First, however, the judge considered the state's argument that any relief was barred by the Eleventh Amendment. The state defendants argued that the requested relief therefore must include an order for the State to sign a contract with and pay money to Planned Parenthood, thereby violating the State’s sovereign immunity. Rejecting this argument, the court stated that it found "the injunctive relief sought by Planned Parenthood will not violate the Eleventh Amendment, as it seeks an order which would simply preclude the defendants from any decision allocating Title X funding on the basis of the allegedly unconstitutional Section 107(l).”
As to Planned Parenthood's pre-emption claim, the judge noted that there were several cases holding that a state's imposition of additional eligibility requirements under Title X are invalid as creating an unconstitutional conflict. The state statute did not simply render uncertain whether or not Planned Parenthood could receive state funding; it made it impossible for the organization to be funded.
Regarding Planned Parenthood's First Amendment claim, the judge distinguished it from unconstitutional conditions cases such as Rust v. Sullivan. Here, it was not that there were conditions attached to the funding, but that an organization was deemed ineligible based entirely on "participation in unrelated political conduct. This punitive aspect of the statute, arising from the plaintiff’s protected association with abortion related services, renders the statute unconstitutional." Thus, the judge focused on the First Amendment right of association.
Discussed in both of the Planned Parenthood claims was the legislative intent of the statute. Was the intent of the statute directed at Planned Parenthood? The judge soundly rejected the state defendants "suggestion that the statute was simply designed to prioritize funding to entities who have a higher percentage of poor clients" as a post-hoc, “litigation-spawned” attempt to find some alternative, benign rationale for the statute. The judge also considered the statement of the amendment's sponsor, Lance Kinzer, including on the floor of the House and on his facebook page:
Delighted to announce that the KS House just approved my floor amendment to deny Title X funding to Planned Parenthood for the balance of FY2011. The vote was 91-26, a great victory on the first pro-life floor vote
of the session.
Similarly, Governor Brownback, who signed the statute into law, was quoted by The Lawrence, Kansas Journal-World as hailing the Kinzer amendment on the grounds that it would “zero out funding of Planned Parenthood.” The judge found these were not isolated statements, but indicative of legislative intent both to "punish" Planned Parenthood in contravention of its free association First Amendment rights and to contradict the direct mandate of the federal law.
August 1, 2011 in Abortion, Association, Cases and Case Materials, Current Affairs, Eleventh Amendment, Family, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Preemption, Privacy | Permalink | Comments (0) | TrackBack
July 13, 2011
Polygamy Challenge: Complaint Claiming Utah's Statute Unconstitutional
Standing seems easily established. Before the show, there was little attention paid to the group, but that was not the case after the reality showed aired.
The complaint characterizes the Brown Family (they all have the same surname) as a plural "family" rather than using the term plural marriage. Indeed, Corey Brown, the sole male, is legally married to only one of the women. This arguably runs afoul of Utah Stat. 76-7-101(1), which defines bigamy broadly:
(1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
Section 2 of the statute provides that bigamy is a felony of the third degree.
The complaint alleges the Utah statute is unconstitutional based on six claims: due process and equal protection under the Fourteenth Amendment, and free exercise of religion, free speech, freedom of association, and anti-establishment of religion under the First Amendment.
Perhaps most controversially, the complaint relies upon Lawrence v. Texas in which the Court declared Texas' sodomy statute unconstitutional under the due process clause. For some, this type of "slippery slope" argument is uncomfortable, and made more uncomfortable because, as the TMZ entertainment site phrases it, "The Mormons and the gays -- they don't always get along."
Certainly, although bigamy has a colonial history, for Americans the notion of plural marriage - - - and plural families - - - is inextricably intertwined with the Mormon religion as it appeared in the antebellum nation.
One of the best histories of this period is Sarah Barringer Gordon's The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America (2002). Gordon's history is essential reading for anyone interested in pursuing scholarship on polygamy.
Gordon discusses the history behind the case of Reynolds v. United States, 98 U.S. 145 (1878), a “test case” in which Mormon leaders had a “reasonable hope” of their First Amendment claims being vindicated. But of course, in Reynolds the Court rejected those claims, in part because polygamy was not "American."
On the African context of polygamy, some of the best writing is by my colleague Peneleope Andrews, including her discussions of South African President Zuma's multiple marriages.
As for the analogies between same-sex marriage and plural marriages, there has been much scholarship on this issue, including my own piece in Temple Law Review.
July 13, 2011 in Current Affairs, Due Process (Substantive), Equal Protection, Establishment Clause, Family, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, History, Privacy, Religion, Sexuality, Standing, Television | Permalink | Comments (2) | TrackBack
April 27, 2011
Footnote of the Day: Colonial Criminal Sodomy Statutes
Footnote 5 provides:
Criminal sodomy laws in effect in 1791:
Connecticut: 1 Public Statute Laws of the State of Connecticut, 1808, Title LXVI, ch. 1, § 2 (rev. 1672).
Delaware: 1 Laws of the State of Delaware, 1797, ch. 22, § 5 (passed 1719).
Georgia had no criminal sodomy statute until 1816, but sodomy was a crime at common law, and the General Assembly adopted the common law of England as the law of Georgia in 1784. The First Laws of the State of Georgia, pt. 1, p. 290 (1981).
Maryland had no criminal sodomy statute in 1791. Maryland's Declaration of Rights, passed in 1776, however, stated that "the inhabitants of Maryland are entitled to the common law of England," and sodomy was a crime at common law. 4 W. Swindler, Sources and Documents of United States Constitutions 372 (1975).
Massachusetts: Acts and Laws passed by the General Court of Massachusetts, ch. 14, Act of Mar. 3, 1785.
New Hampshire passed its first sodomy statute in 1718. Acts and Laws of New Hampshire 1680-1726, p. 141 (1978).
Sodomy was a crime at common law in New Jersey at the time of the ratification of the Bill of Rights. The State enacted its first criminal sodomy law five years later. Acts of the Twentieth General Assembly, Mar. 18, 1796, ch. DC, § 7.
New York: Laws of New York, ch. 21 (passed 1787).
At the time of ratification of the Bill of Rights, North Carolina had adopted the English statute of Henry VIII outlawing sodomy. See Collection of the Statutes of the Parliament of England in Force in the State of North Carolina, ch. 17, p. 314 (Martin ed. 1792).
Pennsylvania: Laws of the Fourteenth General Assembly of the Commonwealth of Pennsylvania, ch. CLIV, § 2 (passed 1790).
Rhode Island passed its first sodomy law in 1662. The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations 1647-1719, p. 142 (1977).
South Carolina: Public Laws of the State of South Carolina, p. 49 (1790).
At the time of the ratification of the Bill of Rights, Virginia had no specific statute outlawing sodomy, but had adopted the English common law. 9 Hening's Laws of Virginia, ch. 5, § 6, p. 127 (1821) (passed 1776).
Footnote 6 of the opinion then lists the "Criminal sodomy statutes in effect in 1868."
These footnotes are from the opinion of Justice White (pictured above via) for the Court in Bowers v. Hardwick, 478 U.S. 186 (1986), in which the Court reversed the Eleventh Circuit, and held Georgia's sodomy statute constitutional, based in large part on its reasoning that these criminal statutes formed a background against which a "claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious."
Bowers v. Hardwick was reversed by Lawrence v. Texas,539 U.S. 558 (2003).
April 07, 2011
Arkansas Supreme Court Holds Ban on Adoption by Unmarried Couples Unconstitutional
Affirming a state trial judge's conclusion rendered almost a year ago, the Arkansas Supreme Court today declared the Arkansas law banning adoption by unmarried couples unconstitutional under the state constitution in a 25 page opinion, Arkansas Department of Human Services v. Cole.
The law, Act One, was passed by the voters in November 2008 and prohibited cohabiting same-sex couples and (unmarried) heterosexual couples from becoming foster or adoptive parents.
The Arkansas Supreme Court held that there is a fundamental, if implicit, right of privacy in the state constitution: "under the Arkansas Constitution, sexual cohabitors have the right to engage in private, consensual, noncommercial intimacy in the privacy of their homes." This right was infringed by Act One which "precludes all sexual cohabitors, without exception, from eligibility for parenthood, whether by means of adoption or foster care." The court found it objectionable that under Act One state "agencies must 'police' couples seeking adoption or foster care to determine whether they are sexually involved in the event those couples represent that they are celibate."
Based on the existence of the fundamental right, the court applied a "heightened scrutiny" standard which it defined as requiring a compelling interest and least restrictive method to carry out that interest.
The court articulated the interests and concerns raised by the state and the intervenor, Family Council Action Committee, that has sponsored the ballot initiative. These concerns included arguments that unmarried cohabiting relationships are less stable, put children at higher risk for domestic violence and abuse, and have lower income rates, higher infidelty rates, and less "social support." The court did not engage in any discussion about whether or not such propositions were true, but instead concluded that such concerns could be "addressed by the individualized screening process currently in place in foster and adoption cases."
Thus, the individualized assessments were the least restrictive means and the categorical ban failed to pass "constitutional muster."
(H/T Tony Infanti, at Feminist Law Professors Blog)
[image: by Moritz Pläschke, circa 1888) via]
April 7, 2011 in Cases and Case Materials, Family, Fundamental Rights, Gender, Opinion Analysis, Privacy, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (0) | TrackBack
March 10, 2011
CFP: Secrecy, National Security, and the Vindication of Constitutional Law
For a Conference in Milan, Italy on December 1-2, 2011, with proposals due April 24, 2011.
In virtually every nation, assertions of the need for secrecy on matters of counterterrorism policy and practice have created tensions with efforts to ensure transparency, accountability and procedural fairness. The conference is open to proposals that seek to bring comparative analysis to bear on how best to mediate these tensions, including:
- the challenge of secrecy to democratic lawmaking on counterterrorism policy;
- the use of “secrecy” privileges to block litigation challenging allegedly illegal government
- the use of classified evidence against individuals or organizations to freeze their assets, designate them as terrorist, or justify other restraints on their liberty;
- the use of “anonymous” witnesses who testify without revealing their identity;
- the closure of criminal trials and other proceedings to the public;
- and the adoption of secret coercive programs without transparent legal justification, such as the US’s coercive interrogation practices or targeted killing program.
February 17, 2011
Lawrence in Louisiana: Lawsuit Challenges Sex Offender Registration Scheme
In the landmark case of Lawrence v. Texas, the United States Supreme Court held a statute criminalizing sodomy violated due process as guaranteed by the Fourteenth Amendment. The opinion specifically noted that the case did not involve commercial sex.
But may a state constitutionally punish commercial sex involving sodomy more severely than commercial sex generally?
The complaint in Doe v. Jindal contrasts two types of commercial sex offenses: the "Crime Against Nature by Solicitation" statute criminalizes solicitation of "unnatural carnal copulation for compensation;" the general prostitution statute criminalizes solicitation of "indiscriminate sexual intercourse" for compensation. Because of the broad definition of "sexual intercourse," the general prostitution statute actually includes any act punishable by the more narrow "unnatural carnal copulation" statute.
However, the punishment for two statutes is not identical, even after recent amendments. Additionally, only convictions under one of these statutes requires registration as a sex offender. According to the complaint, Louisiana is the only state that requires sex offender registration for any solicitation offense.
The complaint alleges that this statutory scheme is a denial of equal protection, due process, and the Eighth Amendment. While due process may be the most obvious claim after Lawrence, recall O'Connor's concurring opinion in Lawrence on equal protection grounds and recall Powell's concurring opinion in Bowers v. Hardwick (the case Lawrence overruled) raising the specter of the Eighth Amendment.
December 16, 2010
Ireland's Abortion Criminalization at the European Court of Human Rights
In a lengthy decision today, the European Court of Human Rights (the Grand Chamber) held Ireland's criminalization of abortion contravened the European Convention on Human Rights as to one of the three women litigants.
Central to the decision in Case of A, B, and C v. Ireland, is Article 8 of the European Convention on Human Rights:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The challengers, A, B, and C, all residents of Ireland who traveled to the United Kingdom to obtain an abortion because of the criminalization of abortion in Ireland, argued that their rights under Article 8 were violated.
Each of the women has sympathetic circumstances. Challenger A was impoverished, suffering from depression and recovering from alcoholism, has four children in foster care with whom she is struggling to be reunited. Challenger B was single and feared an ectopic pregnancy. Challenger C was in remission from cancer, and feared both a relapse and that certain treatments may have caused damage to the fetus.
The Court found Article 8 was contravened only with regard to Challenger C. Ireland's violation was a failure to implement its existing constitutional right to an abortion when the pregnant woman's life was at stake.
The decision is thus a narrow one and certainly does not invalidate Ireland's abortion ban.
September 27, 2010
Updating the ECPA (Electronic Communications Privacy Act)
The constitutional protection of "privacy" in the internet age is a subject of ongoing debate. As the NYT reports, Congress is considering "sweeping new regulations for the Internet," to include email, "Facebook" and "Skype" messaging.
Such revisions will, of course, be subject to challenge under the First and Fourth Amendments. Jim Dempsey, of the Center for Democracy and Technology, testified before the Judiciary Committee and stressed the Fourth Amendment aspects of privacy, as well as highlighting the disarray of the current state of the law.
Dempsey's appendix to his written testimony, discussing the current state of the law regarding protection for an email, demonstrates the doctrinal disorder:
ECPA, as interpreted by the Justice Department and the courts, provides a patchwork quilt of standards for governmental access to email. Under ECPA today, the status of a single email changes dramatically depending on where it is stored, how old it is, and even the district within which the government issues or serves its process.
Standards for access to the content of an email:
• Draft email stored on desktop computer – As an email is being drafted on a personʼs computer, that email is fully protected by the Fourth Amendment: the government must obtain a search warrant from a judge in order to seize the computer and the email.
• Draft email stored on gMail – However, if the person drafting the email uses a “cloud” service such as Googleʼs gMail, and stores a copy of the draft email with Google, intending to finish it and send it later, ECPA says that Google can be compelled to disclose the email with a mere subpoena. 18 U.S.C. 2703(b).
• Content of email in transit – After the person writing the email hits “send,” the email is again protected by the full warrant standard as it passes over the Internet. Most scholars and practitioners assume that the Fourth Amendment applies, but in any case the Wiretap Act requires a warrant to intercept an email in transit.
• Content of email in storage with service provider 180 days or less – Once the email reaches the inbox of the intended recipient, it falls out of the Wiretap Act and into the portion of ECPA known as the Stored Communications Act, 18 U.S.C. 2703(a). At least so long as the email is unopened, the service provider can be forced to disclose it to the government only with a warrant.
• Content of opened email in storage with service provider 180 days or less – The Justice Department argues that an email, once opened by the intended recipient, immediately loses the warrant protection and can be obtained from the service provider with a mere subpoena. (Under the same theory, the sender of an email immediately loses the warrant protection for all sent email stored with the senderʼs service provider.) The Ninth Circuit has rejected this argument. The question remains unsettled in the rest of the country. The Justice Department recently sought opened email in Colorado without a warrant; when the service provider resisted, the government withdrew its request, which means in effect that outside of the Ninth Circuit there may be one standard for service providers who comply with subpoenas and one for service providers who insist on a warrant.
• Content of email in storage with service provider more than 180 days – ECPA specifies that all email after 180 days loses the warrant protection and is available with a mere subpoena, issued without judicial approval.
Dempsey, written testimony at 15.
ConLawProfs looking for a provocative class discussion or exercise could attempt to elucidate the constitutional theory underpinnings of the current state of email protection, or make arguments regarding the government's attempts to include "Facebook" or "Skype," or the application to the military's "Don't Ask, Don't Tell" policy as construed by a judge who considered the military's use of private emails in her conclusion that the policy is unconstitutional.
September 27, 2010 in Criminal Procedure, Current Affairs, First Amendment, Fourth Amendment, Fundamental Rights, News, Privacy, Speech, Teaching Tips, Theory, Web/Tech | Permalink | Comments (0) | TrackBack
April 15, 2010
Taxation and Privacy
"Surrogate birth mothers" often have income from the "service" they have provided, but must they report that income as income? Or, as Bridget Crawford (pictured left) asks, does an income tax reporting requirement infringe upon a surrogate’s constitutional right to privacy, as envisioned by Griswold, Eisenstadt and Lawrence?
Crawford's newest article, Taxation, Pregnancy, and Privacy, 16 William & Mary Journal of Women and the Law 327-368 (2010) (available on ssrn here), argues that surrogacy payments should be taxed, despite any constitutional (or other) claims of privacy. She reaches the same conclusion about the sale of body parts, virginity (as auctioned to the highest bidder), and the proceeds from prostitution.
It seems that substantive due process under the Fourteenth Amendment is no shield against the power of the Sixteenth Amendment. Our most recent discussion of the Sixteenth Amendment, including efforts to repeal it is here.
April 15, 2010 in Current Affairs, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, Privacy, Reproductive Rights, Scholarship, Taxing Clause | Permalink | Comments (0) | TrackBack
April 06, 2010
Right To Intimate Association in Eleventh Circuit
Senior Judge Phyllis Kravitch (pictured left) authored a unanimous opinion for a panel of the Eleventh Circuit Court of Appeals (h/t How Appealing) affirming summary judgment against a claim of a firefighter who was demoted because of his extramarital affair with another employee in a Fire Department in which such liaisons seemed rather common.
What makes the relatively brief opinion in Starling v. Board County Commissioners of Palm Beach County interesting, however, is that the Eleventh Circuit assumed "arguendo" that there was a intimate right of association under the First Amendment. The court ultimately found that this right was outweighed in the public employment context, applying the balancing test of Pickering v. Board of Education. For analytic precedent, Starling cites the notorious Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1 1997) (en banc) in which the court upheld the withdrawal of an employment offer to Robin Joy Shahar from the Attorney General of Georgia, Michael Bowers [of Bowers v. Hardwick] because Shahar married her female partner. Yet as Judge Tjoflat's concurring opinion in Shahar made clear, an intimate association claim partakes of both substantive due process and First Amendment doctrine.
Thus, for practitioners, students, and theorists thinking about fundamental rights to sexuality under the due process clause, Starling may provide further support for first amendment grounding.
January 23, 2010
Reproductive and Sexual Rights Conference: NYU February 12
A one-day Symposium gathering scholars and practitioners involved in reproductive and sexual rights will be held by the NYU Review of Law and Social Change on February 12, 2010.
Registration and other information here.
January 23, 2010 in Conferences, Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Privacy, Race, Reconstruction Era Amendments, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality, Theory | Permalink | Comments (0) | TrackBack
December 22, 2009
Update: Pregancy Policy for Army, Comments by Major General Cucolo
UPDATE: For a comment posted by Task Force Marne PAO from Cucolo see comments to previous post here.
The "anti-pregnancy" policy announced by Major General Cucolo (pictured) previously discussed here, has caused quite a stir.
A Department Defense briefing, December 22, 2009, available from the Federal News Service (and on Lexis), is headlined:
Defense Department Conference Call With Major General Tony Cucolo, U.S. Army, Commander, 3rd Infantry Division Via Teleconference From Iraq;
Subject: Pregnancy Provision In His Recent General Order
Cucolo specifically addressed the matter of court-martial for pregnancy:
Now, I regret that the term court-martial was bandied about or mentioned by one of the earliest written reports on this. I think what they did was, they probably read the general order number one and saw the words there.
This is -- this aspect of general order number one is a good order and discipline issue. And I believe that I can handle violations of this aspect with lesser degrees of punishment.
So no, I do not -- I have not ever considered court-martial for this. I do not ever see myself putting a soldier in jail for this. I have had four soldiers. I have had to deal with four cases. In each case, they received a written reprimand, a letter of reprimand.
Now, I had two choices with that written letter of reprimand. I could have put it in their official file, which may or may not have impacted their career. But it would stay in their file, be seen at promotion boards, things like that.
Or I could put it in their local file, which is local disciplinary action, stays in the unit for a finite period of time and does not follow them when they're transferred.
In the four cases I had, they got local letters of reprimand. The obviously you say -- you know, I mean, I hold the men accountable too.
So there should have been four males punished. There were three males punished. And the reason there weren't four is because one female soldier did not want to say the name of the father, and I dropped it. I did not pursue it.
Responding to criticisms that the policy treats men and women differently, Cucolo had this to say:
The men stay in combat, and the women are sent home because they're pregnant, but both receive the same punishment, unless there are other circumstances. Both receive the same punishment.
. . . .
I am the one responsible and accountable for these 22,000 soldiers. The National Organization for Women is not. Critics are not. I appreciate -- I will listen to critics, and they add thought. But they actually don't have to do anything. I have to accomplish a very complex mission, very complex.
We are on the Kurd-Arab faultline up here. We are -- we are moving units, relocating things. It's a very dynamic atmosphere. And I am most concerned about the health, welfare, morale, well-being and fighting ability of every single one of my soldiers. And I'm going to do what it takes to maintain our strength and bring as many home as I can.
I owe that to the American -- I believe the American people expect me to do everything I can to keep every one of the soldiers -- that their money, their taxpayer dollars, trained and got ready for this -- in the fight.
December 22, 2009 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, News, Privacy, Reproductive Rights, War Powers | Permalink | Comments (1) | TrackBack