Tuesday, March 3, 2015
In a per curiam opinion in excess of 130 pages, the Alabama Supreme Court has ordered certain probate judges to 'discontinue the issuance of marriage licenses to same-sex couples' in compliance with a district judge's order and a denial of a stay by the United States Supreme Court.
[UPDATED: Reports state that the controversial Chief Justice Roy Moore recused himself from the ruling, but neither Moore nor recusal seems to be mentioned in the opinion]. The Alabama Supreme Court's opinion per curiam opinion states that "Stuart, Bolin, Parker, Murdock, Wise, and Bryan, JJ., concur," and that "Main, J., concurs in part and concurs in the result," and that "Shaw, J., dissents." Chief Justice Moore is the ninth of the nine justices of the Alabama Supreme Court (pictured below).
The case is styled Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County; In re: Alan L. King, in his official capacity as Judge of Probate for Jefferson County, et al., and is an Emergency Petition for Writ of Mandamus. Justice Greg Shaw's dissent highlights the unusual procedural posture of the case: he concludes that the Alabama Supreme Court does not have original jurisdiction, that the public interest groups (Alabama Policy Institute and Alabama Citizens Action Program) cannot sue in Alabama's name and do not have standing, that the petition for writ of mandamus is procedurally deficient given that there is no lower court opinion, and that the court's opinion improperly rules on the constitutionality of the Alabama marriage laws since that issue is not before it. Justice Shaw concludes:
I believe that this case is not properly before this Court. As the main opinion notes, this case is both unusual and of great public interest; however, I do not see a way for this Court to act at this time. By overlooking this Court's normal procedures; by stretching our law and creating exceptions to it; by assuming original jurisdiction, proceeding as a trial court, and reaching out to speak on an issue that this Court cannot meaningfully impact because the Supreme Court of the United States will soon rule on it; and by taking action that will result in additional confusion and more costly federal litigation involving this State's probate judges, this Court, in my view, is venturing into unchartered waters and potentially unsettling established principles of law.
Shaw's dissent provides a window into the Alabama Supreme Court's lengthy opinion. Much of the opinion concerns the odd procedural posture of the case. The opinion does specifically address the relationship between Alabama and the federal judge's decision by declaring that the "Respondents' Ministerial Duty is Not Altered by the United States Constitution":
The United States District Court for the Southern District of Alabama has declared that Alabama's laws that define marriage as being only between two members of the opposite sex -- what has been denominated traditional marriage -- violate the United States Constitution. After careful consideration of the reasoning employed by the federal district court in Searcy I, we find that the provisions of Alabama law contemplating the issuance of marriage licenses only to opposite-sex couples do not violate the United States Constitution and that the Constitution does not alter or override the ministerial duties of the respondents under Alabama law.
Thus, because the Alabama Supreme Court disagrees, Alabama is not bound by the federal decision. The Alabama Supreme Court's "per curiam" opinion on the constitutionality of the same-sex marriage ban is scholarly, lengthy, and well-reasoned (and perhaps more persuasive than the Sixth Circuit's opinion in DeBoer v. Snyder, to which the United States Supreme Court granted certiorari, and on which the Alabama Supreme Court relies extensively). But this discussion does little to resolve the basic federalism of whether the state is bound by the federal court's judgment. The court's order does include this specific provision, which may engage the issue most directly:
As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.
March 3, 2015 in Courts and Judging, Current Affairs, Federalism, Fourteenth Amendment, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
The Supreme Court ruled today in Direct Marketing Ass'n v. Brohl that out-of-state retailers can move forward with their challenge to Colorado's requirement that the retailers notify Colorado customers of their Colorado sales and use tax burden and report tax-related information to those customers and to the Colorado Department of Revenue.
The case tests a state's best efforts at collecting sales and use taxes for out-of-state and internet purchases by its residents, given the long-standing rule that a state cannot tax out-of-state and internet retailers directly.
The underlying issue goes back to 1967, when the Court ruled in National Bellas Hess, Inc. v. Department of Revenue of Illinois that states cannot require a business to collect use taxes (the equivalent of sales taxes for out-of-state purchases) if the business does not have a physical presence in the state. That rule was based on the Dormant Commerce Clause. The Court reaffirmed that rule in 1992 in Quill Corp. v. North Dakota.
But that rule has created a significant loss of revenue for states, now that so many (and dramatically increasing) sales go through the internet, to out-of-state online retailers. The rule means that states cannot collect use taxes from those retailers.
So some states, like Colorado, implemented information and reporting requirements. For example, Colorado's law requires out-of-state retailers to inform its in-state customers of their use tax burden and to report tax-related information to Colorado tax authorities.
Out-of-state retailers sued, arguing that Colorado's requirements violated the Dormant Commerce Clause. The district court ruled in their favor, but the Tenth Circuit reversed, holding that the suit was barred by the Tax Injunction Act. In a relatively short and simple opinion today, the unanimous Court reversed, holding that the Tax Injunction Act did not bar the suit (because the Act only bars suits against a tax "assessment, levy or collection," and not information and reporting requirements).
The Court's ruling opens the door to the out-of-state retailers' challenge to Colorado's information and reporting requirements. If the district court is right, even these modest efforts violate the Dormant Commerce Clause--and create an even bigger headache for states trying to collect use taxes on their citizens' out-of-state and internet purchases.
On the other hand, Justice Kennedy signaled today in concurrence that the Court may be willing to reassess its Bellas Hess and Quill Corp. rule (or at least that the Court should reassess the rule) in light of the technological changes we've seen in the last 25 years (and the proliferation of online retailers) and the fact that the Dormant Commerce Clause changed enough between the two cases to render the Quill ruling questionable. (Justice Kennedy reminds us that three Justices upheld Bellas Hess in Quill on stare decisis grounds alone, and that the majority recognized that Bellas Hess stood on weak ground.)
Bellas Hess and Quill Corp. go to state use taxes, not information and reporting requirements like Colorado's. Still, the retailers' challenge to Colorado's information and reporting requirements could put Quill on the chopping block. (At least the district court decision striking the requirements relied on Quill.)
If so, this case (in its next round) could give the Supreme Court a chance to reassess the Quill rule and give states more latitude in collecting use taxes from out-of-state and internet retailers.
March 3, 2015 in Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases | Permalink | Comments (0) | TrackBack (0)
Monday, February 9, 2015
Supreme Court Denies Stay of Alabama Same-Sex Marriage While Alabama Supreme Court Chief Justice Continues the Argument
Over a dissenting opinion by Justice Thomas, joined by Justice Scalia, the Court denied the application for a stay in Strange v. Searcy. Recall that in January, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.
The controversial Chief Judge of the Alabama Supreme Court Roy Moore has reacted negatively to the federal court opinion, including penning a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order. That letter prompted an ethics complaint filed against Roy Moore from the Southern Poverty Law Center arguing that:
Chief Justice Roy Moore has improperly commented on pending and impending cases; demonstrated faithlessness to foundational principles of law; and taken affirmative steps to undermine public confidence in the integrity of the judiciary. For all these reasons, we respectfully request that this Judicial Inquiry Commission investigate the allegations in this complaint and recommend that Chief Justice Moore face charges in the Court of the Judiciary.
assist weary, beleaguered, and perplexed probate judges to unravel the meaning of the actions of the federal district court in Mobile, namely that the rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law.
Judge Moore's argument that the state need not comply with federal decisions has prompted some commentators to make comparisons to Alabama's position during the Civil Rights Era, including a thoughtful WaPo piece by ConLawProf Ronald J. Krotoszynski Jr. at University of Alabama Law School.
The dissenting opinion from Justice Thomas (joined by Scalia) did not mention Judge Moore by name, but did include a decisive nod to some of Moore's arguments:
Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. *** It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.
Perhaps more importantly, Justice Thomas notes that the constitutionality of same-sex marriage is now before the Court, but yet
the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013). This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.
Justice Thomas is not the only one considering whether the Court's denial of a stay and thus allowing same-sex marriages to proceed in Alabama is a "signal" of the Court's leanings in DeBoer v. Snyder.
February 9, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Interpretation, News, Opinion Analysis, Recent Cases, Supremacy Clause, Supreme Court (US), Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 27, 2015
In a Letter to the Governor of Alabama, Robert Bentley today, the Chief Justice of Alabama Supreme Court, Roy Moore (pictured) asked the Governor to continue to uphold the respect for different-sex marriage and reject the judicial "tyranny" of the federal district court's opinion last Friday finding the same-sex marriage ban unconstitutional. He writes grounds the sacredness of man-woman marriage in the Bible, and writes
Today the destruction of that institution is upon us by federal courts using specious pretexts based on the Equal Protection, Due Process, and Full Faith and Credit Clauses of the United States Constitution. As of this date, 44 federal courts have imposed by judicial fiat same-sex marriages in 21 states of the Union, overturning the express will of the people in those states. If we are to preserve that “reverent morality which is our source of all beneficent progress in social and political improvement," then we must act to oppose such tyranny!
He argues that United States district court opinions are not controlling authority in Alabama, citing a case, Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 744n.5 (Ala. 2009), regarding a common law negligence claim rather than a constitutional issue. He does not argue the Supremacy Clause.
Justice Moore is no stranger to controversial positions, including promoting his biblical beliefs over federal law, and gained notoriety as the "the Ten Commandments Judge." Recall that Moore was originally elected to the Alabama Supreme Court with the campaign promise to “restore the moral foundation of the law” and soon thereafter achieved notoriety for installing a 5,280-pound monument depicting the Ten Commandments in the rotunda of the Alabama State Judicial Building. See Glassroth v. Moore, 335 F.3d 1282, 1285 (11th Cir. 2003). After federal courts found that the monument violated the Establishment Clause of the First Amendment, Glassroth v. Moore, 229 F. Supp. 2d 1290, 1304 (M.D. Ala. 2002), aff’d, Glassroth v. Moore, 335 F.3d 1282, 1284 (11th Cir. 2003), Chief Justice Moore was ordered to remove the monument. See Glassroth v. Moore, No. 01-T-1268-N, 2003 LEXIS 13907 (M.D. Ala. Aug. 5, 2003). After the deadline to remove the monument passed, Chief Justice Moore was suspended, with pay, pending resolution of an ethics complaint, which charged that he failed to “observe high standards of conduct” and “respect and comply with the law.” Jeffrey Gettleman, Judge Suspended for Defying Court on Ten Commandments, N.Y. Times, August 23, 2003, at A7.
January 27, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Full Faith and Credit Clause, Fundamental Rights, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US), Theory | Permalink | Comments (3) | TrackBack (0)
Saturday, January 10, 2015
The Ninth Circuit, over a dissent of three judges, has denied the petitions for en banc review of Latta v. Otter (and Sevick v. Sandoval) in which a panel held that the same-sex marriage bans in Idaho and Nevada respectively are unconstitutional.
Recall that the unanimous panel opinion authored by Judge Reinhardt held that the Idaho and Nevada laws regarding same-sex marriage "violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard" of SmithKline Beecham Corp. v. Abbott Labs.
The Ninth Circuit's panel opinion was rendered one day after the United States Supreme Court denied certiorari to the petitions in the Fourth, Seventh, and Tenth Circuit cases with similar holdings. However, since then, the Sixth Circuit rendered a divided panel decision in DeBoer v. Snyder reversing lower courts and upholding the same-sex marriage bans in in Kentucky, Michigan, Ohio, and Tennessee.
Judge O'Scannlain's dissent from the denial of en banc review - - - joined by Judges Rawlinson and Bea - - - relies in part on the Sixth Circuit's opinion in DeBoer v. Snyder and the circuit split it created. Like the Sixth Circuit, O'Scannlain argues that the operative precedent is Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question." And like the Sixth Circuit, the dissent distinguishes Windsor v. United States as limited to the federal government.
The major argument of the dissent, however, is that the question of same-sex marriage is not only one for the states, it is decidedly not one for the federal courts interpreting the constitution: "Nothing about the issue of same-sex marriage exempts it from the general principle that it is the right of the people to decide for themselves important issues of social policy."
This judicial restraint v. judicial activism debate is well-worn territory. And like other judges, O'Scannlain is not a consistent adherent to one side or the other: Recall his dissent from en banc review in Pickup v. Brown, in which the panel upheld a California statute banning sexual conversion therapy against a constitutional challenge. But O'Scannlain does interestingly write:
As Justice Kennedy wrote in Schuette, ‘‘It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds . . . . Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.”
Thus, O'Scannlain implicitly points to Kennedy's inconsistency regarding the desirability of resort to democratic processes and judicial restraint in the affirmative action case of Schuette as compared to his opinion in Romer v. Evans (on Colorado's Amendment 2), as well as Windsor and Lawrence v. Texas, and presumably Kennedy's opinion should the same-sex controversy reach the United States Supreme Court.
The Court itself is currently entertaining several petitions for certiorari on the same-sex marriage issue, including the Sixth Circuit opinion.
Meanwhile, the Fifth Circuit heard oral arguments (January 9) on appeals in Robicheaux v. Caldwell (in which a federal judge upheld Louisiana's same-sex marriage ban); DeLeon v. Perry (preliminary injunction against Texas' same-sex marriage ban as unconstitutional); and Campaign for Southern Equality v. Bryant, (preliminary injunction against Mississippi's same-sex marriage ban as unconstitutional). The oral arguments are available on the Fifth Circuit's website.
January 10, 2015 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Sexual Orientation, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Friday, January 2, 2015
Cyrus Favier, over at ars technica, surveys the candidates of current litigation- - - five! - - -that might bring the issues of the constitutionality of NSA surveillance to the United States Supreme Court.
Favier looks at the dueling opinions in Klayman v. Obama and ACLU v. Clapper, as well as lesser known cases winding their ways through the courts. And as he implies, regardless of the status of these particular cases, there are plenty more percolating:
Case name: N/A
Moreover, the Court's unanimous recent opinion in Riley v. California finding a cell phone search requires a warrant and the continuing uncertainty over the 1979 "pen register" case Smith v. Maryland gives some credence to the speculation.
ConLawProfs looking for something accessible yet substantively provocative for the first day of classes should take a look at Favier's article.
Monday, December 22, 2014
Fourth Circuit Finds North Carolina's Anti-Abortion "Right to Know" Statute Violates First Amendment
In the unanimous panel opinion today in Stuart v. Camnitz, authored by Judge J. Harvie Wilkinson, the court agreed with the district judge that North Carolina's "Woman's Right to Know Act" violates the First Amendment. The Act required a physician "to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions."
The Fourth Circuit ruled that the statute is
quintessential compelled speech. It forces physicians to say things they otherwise would not say. Moreover, the statement compelled here is ideological; it conveys a particular opinion. The state freely admits that the purpose and anticipated effect of the Display of Real-Time View Requirement is to convince women seeking abortions to change their minds or reassess their decisions.
The court rejected the state's contention that the statute was merely a regulation of professional speech that should be subject to the low standard of rational basis review. Instead, the court reasoned that because the statute was a content-based regulation of speech, it should be evaluated under an intermediate scrutiny standard akin to that of commercial speech.
Importantly, the court also acknowledged its specific disagreement with the Eighth Circuit's en banc opinion in Planned Parenthood v. Rounds (2012) and the Fifth Circuit's opinion in Tex. Med. Providers Performing Abortion Servs. v. Lakey (5th Cir. 2012). The Fourth Circuit states that its sister circuits were incorrect to reply on a single paragraph in Planned Parenthood of Southeastern Pa. v. Casey, and "read too much into Casey and Gonzales [v. Carhart]," neither of which, the court points out, were First Amendment cases.
As the court stated,
In sum, though the State would have us view this provision as simply a reasonable regulation of the medical profession, these requirements look nothing like traditional informed consent, or even the versions provided for in Casey and in N.C. Gen. Stat. § 90-21.82. As such, they impose an extraordinary burden on expressive rights. The three elements discussed so far -- requiring the physician to speak to a patient who is not listening, rendering the physician the mouthpiece of the state’s message, and omitting a therapeutic privilege to protect the health of the patient -- markedly depart from standard medical practice.
Abortion may well be a special case because of the undeniable gravity of all that is involved, but it cannot be so special a case that all other professional rights and medical norms go out the window. While the state itself may promote through various means childbirth over abortion, it may not coerce doctors into voicing that message on behalf of the state in the particular manner and setting attempted here.
Most likely North Carolina will seek en banc review or petition for certiorari based on the conflicting opinions in the Fifth and Eighth Circuits.
Thursday, December 18, 2014
The Second Circuit has granted full court review in Garcia v. Does, a panel decision which allowed plaintiffs' complaint arising from their arrests for participating in a demonstration in support of the Occupy Wall Street movement. The panel, affirming the district judge, denied the motion to dismiss of the defendants/appellants, holding that on the current record it could not
resolve at this early stage the ultimately factual issue of whether certain defendants implicitly invited the demonstrators to walk onto the roadway of the Brooklyn Bridge, which would otherwise have been prohibited by New York law.
The unidentified Doe officers argued that video evidence warrants a dismissal. The First Amendment issue of "fair warning" to revoke permission to protest is at issue in the case - - - which would seemingly require more than (incomplete) video evidence. Yet the issue of qualified immunity is seemingly argued as overshadowing the incomplete evidence.
Judge Debra Ann Livingston's lengthy dissent from the opinion by Judges Calabresi and Lynch argues that the panel majority "failed to afford the NYPD officers policing the “Occupy Wall Street” march the basic protection that qualified immunity promises – namely, that police officers will not be called to endure the effort and expense of discovery, trial, and possible liability for making reasonable judgments in the exercise of their duties."
Judge Livingston's views most likely attracted other judges. Now the "in banc" court (as the spelling is used in the Second Circuit) will hear the case, including Senior Judge Calabresi because he was on the panel.
Thursday, November 13, 2014
The Fifth Circuit has denied en banc review by a vote of 15-5 in its Order in Fisher v. University of Texas at Austin.
Recall that in a divided opinion in July, a Fifth Circuit panel held that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.
Recall also that the United States Supreme Court had reversed the Fifth Circuit's original finding in favor of the University (affirming the district judge) and remanded the case for a "further judicial determination that the admissions process meets strict scrutiny in its implementation." The opinion, authored by Justice Kennedy - - - with only Justice Ginsburg dissenting and Justice Kagan recused - - -specified that the "University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal" of diversity and the University should receive no judicial deference on that point.
Judge Emilio Garza, the Senior Judge who dissented from the panel opinion also wrote a very brief dissenting opinion from en banc review, which was joined by Judges Jones, Smith, Clement, and Owen. Judge Garza contends that while the "panel majority dutifully bows" to the United States Supreme Court's requirements in Fisher, it "then fails to conduct the strict scrutiny analysis" the opinion requires "thus returning to the deferential models" of Regents of University of California v. Bakke and Grutter v. Bollinger.
A petition for writ of certiorari is certain; the grant of that petition is less certain.
November 13, 2014 in Affirmative Action, Equal Protection, Federalism, Fourteenth Amendment, Opinion Analysis, Race, Recent Cases, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, November 4, 2014
In a 38 page opinion in Marie v. Moser, Judge Daniel Crabtree held that Kansas' state constitutional provisions and statutes prohibiting same-sex marriages violates the Fourteenth Amendment.
This is not surprising given the Tenth Circuit's opinions in Bishop v. Smith (finding Oklahoma's same-sex marriage prohibition unconstitutional) and Kitchen v. Herbert (finding Utah's same-sex marriage prohibition unconstitutional and the United States Supreme Court's denial of certiorari in these cases a month ago. As Judge Crabtree states: "When the Supreme Court or the Tenth Circuit has established a clear rule of law, our Court must follow it."
First, why is the opinion 38 pages? Shouldn't this opinion be more like last month's four page opinion by the Arizona federal judge stating that it is bound by the Circuit opinion? And indeed, Judge Crabtree's analysis of the Circuit precedent is relatively brief. However, Judge Crabtree's opinion also contains not only a brief discussion of the parties and the challenged laws, but a careful consideration of a variety of other matters including those related to justicability and jurisdiction:
- Standing (generally focusing on redressability, but including a claim that because the plaintiffs are a same-sex female couple, they cannot argue the constitutionality of the Kansas laws as applied to same-sex male couples);
- Eleventh Amendment
- Domestic Relations Exception to federal court jurisdiction
- Absention (including Pullman, Younger, Colorado River, Burford, Rooker-Feldman)
Additionally, Judge Crabtree considered an argument that the correct precedent was not the Tenth Circuit opinion, but a Kansas state court opinion (to which the United States Supreme Court denied certiorari).
Judge Crabtree rejected all of these arguments, but in a careful and considered manner.
Second, why did Judge Crabtree grant a stay to the defendants? Judge Crabtree's answer is related to the length of the opinion. He states that although
the Tenth Circuit has settled the substance of the constitutional challenge plaintiffs’ motion presents. And under the Circuit’s decisions, Kansas law is encroaching on plaintiffs constitutional rights. But defendants’ arguments have required the Court to make several jurisdictional and justiciability determinations, and human fallibility is what it is; the Circuit may come to a different conclusion about one of these threshold determinations. On balance, the Court concludes that a short-term stay is the safer and wiser course.
Thus Judge Crabtree stayed the injunction until November 11, unless the defendants inform the court they will not appeal. Perhaps the state officials in Kansas will conclude that it would be a waste of taxpayers' money as did the state officials in Arizona. Or perhaps not.
Wednesday, October 22, 2014
In his opinion in Conde-Vidal v. Garcia-Padilla, United States District Judge for the District of Puerto Rico Juan Perez-Gimenez dismissed the constitutional challenge to Puerto Rico's law defining marriage as "man and woman" and refusing recognition to marriages "between persons of the same sex or transexuals."
In large part, Judge Perez-Gimenez relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question." For Judge Perez-Gimenez, this dismissal remains binding precedent for several reasons. Judge Perez-Gimenez finds that Baker remains good law despite the "nebulous 'doctrinal developments" since 1972. He rejects the precedential value of Windsor v. United States in this regard: "Windsor does not - - - and cannot - - - change things." He acknowledges and cites authority to the contrary, but finds it unpersuasive. He specifically rejects the relevance of the Supreme Court's denial of certiorari from circuit decisions finding same-sex marriage bans unconstitutional in light of the more solid precedent of Baker v. Nelson.
Judge Perez-Gimenez also grounds his adherence to Baker v. Nelson on the First Circuit's opinion in Massachusetts v. HHS, finding DOMA unconstitutional. The First Circuit's discussion of Baker v. Nelson is somewhat unclear, but Judge Perez-Gimenez rejects the argument that they are dicta and further reasons even if the statements are dicta, "they would remain persuasive authority, and as such, further support the Court's independent conclusions about, and the impact of subsequent decisions on, Baker."
Judge Perez-Gimenez articulates a perspective of judicial restraint, articulating deference to the democtratic institutions of Puerto Rico and adherence to stare decisis. But in the opinion's conclusion, he makes his own views clear:
Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law. Traditional marriage is “exclusively [an] opposite-sex institution . . . inextricably linked to procreation and biological kinship,” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). Traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.
Those are the well-tested, well-proven principles on which we have relied for centuries. The question now is whether judicial “wisdom” may contrive methods by which those solid principles can be circumvented or even discarded.
A clear majority of courts have struck down statutes that affirm opposite-gender marriage only. In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage. And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity? Is “minimal marriage”, where “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties” the blueprint for their design? *** It would seem so, if we follow the plaintiffs’ logic, that the fundamental right to marriage is based on “the constitutional liberty to select the partner of one’s choice.”
Undoubtedly, this issue is on its way to the First Circuit. The states in the First Circuit - - - Rhode Island, Massachusetts, New Hampshire, and Maine - - - all have same-sex marriage without federal court decisions, so this decision from the District of Puerto Rico will provide the First Circuit the opportunity to reconsider Baker v. Nelson and the applicability of its DOMA decision, Massachusetts v. Gill.
Although perhaps the challengers to the same-sex and "transsexual" marriages might seek to have the issue decided by the Puerto Rican Supreme Court.
Wednesday, October 15, 2014
With the denial of certiorari in James Risen's case by the United States Supreme Court in June 2014, from the Fourth Circuit's divided opinion in United States v. Sterling, the situation of James Risen is in limbo. In large part, it was Risen's book, State of War that led to his current difficulties because he will not reveal a source.
Now Risen has a new book, Pay Any Price: Greed, Power, and Endless War, just reviewed in the NYT. As part of the book promotion - - - but also quite relevant to the case against Risen - - - Risen has made several media appearances of note, with the twist on the book title being that it's James Risen who is prepared to "pay any price" to protect his journalistic integrity (and by implication resist governmental power).
Perhaps the most populist of Risen's appearances is in an extended segment of the television show "60 minutes" including not only James Risen but others. The segment explains and situates the controversy, including its current status under President Obama. It also includes statements by General Mike Hayden that he is at least "conflicted" about whether Risen should be pursued for not divulging his source(s), even as Hayden expresses his view that NSA surveillance is "warantless but not unwarranted."
The entire segment is definitely worth watching:
Springboarding to some extent from General Hayden's remarks is Risen's extensive interview with Amy Goodman on Democracy Now (full video and the helpful transcript is here), in which Risen talks about his arguments in the book and a bit about his own predictament, concluding by saying:
AMY GOODMAN: So, you’re covering the very people who could put you in jail.
JAMES RISEN: Yeah, sometimes, yes. As I said earlier, that’s the only way to deal with this, is to keep going and to keep—the only thing that the government respects is staying aggressive and continuing to investigate what the government is doing. And that’s the only way that we in the journalism industry can kind of force—you know, push the government back against the—to maintain press freedom in the United States.
A third noteworthy appearance by Risen is his interview by Terry Gross on NPR's Fresh Air (audio and transcript available here). One of the most interesting portions is near the end, with the discussion of the contrast to the celebrated Watergate investigation of Woodward and Bernstein and Risen's solution of a federal shield law for reporters.
For ConLawProfs teaching First Amendment, these "sources" could be well-used.
October 15, 2014 in Books, Cases and Case Materials, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, International, Privacy, Recent Cases, Speech, State Secrets, Theory, War Powers, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Friday, July 18, 2014
What does the Tenth Circuit Court of Appeals panel decide in its 106 page divided opinions in Bishop v. Smith? It's complicated.
But essentially the Tenth Circuit affirms the district judge's opinion finding the Oklahoma ban on same-sex marriage unconstitutional and extends to Oklahoma its own ruling in Kitchen v. Herbert (by this same panel) from a few weeks ago finding Utah's same-sex marriage prohibition unconstitutional.
The complications are caused in part by the procedural posture of the case. For the majority opinion, authored Judge Carlos Lucero, and joined by Judge Jerome Holmes (as was Herbert v. Kitchen), the major issue was the standing of the plaintiffs, specifically on the "redressability" prong of standing. Recall that Oklahoma has both a constitutional amendment and a statute limiting marriage to "a man and a woman" and that the Oklahoma constitutional amendment not only prohibits same-sex marriage but prohibits its recognition even if valid in another state.
The plaintiffs, in a lawsuit filed in 2004 soon after the state constitutional amendment was adopted, challenged only the state constitutional amendment but not the statute.
Affirming the district judge, the Tenth Circuit held plaintiffs nevertheless had standing because "the statutory prohibitions are subsumed in the challenged constitutional provision, an injunction against the latter’s enforcement will redress the claimed injury." However, again affirming the district judge, the plaintiffs did not have standing to challenge the "recognition" portion of the constitutional amendment because the defendant - - - the clerk of court - - - could not redress the non-recognition injury.
This problem as to the non-recognition of marriage claim is further complicated by the fact that the Tenth Circuit, in considering a dismissal of the Governor and Attorney General as defendants who could redress the injury stated - - - or seemed to state? - - - that the Clerk of the Court was the correct defendant. Thus, under a "law of the case" argument, the courts should be bound by that determination. The Tenth Circuit panel decided it was not bound, in part because of the "new evidence" of an affidavit by the Court Clerk describing her duties. It also rejected a nonseverability of the recognition and nonrecognition portions of the provision, finding that because it had not been made earlier it was waived.
As to the merits, the majority held that it was governed by its ruling in Kitchen v. Herbert, although facts and arguments differed "in some respects," the "core holdings are not affected by those differences." The panel majority did discuss two additional arguments: a Baker v. Nelson argument that lower courts were not free to consider doctrinal developments and the addition of a government interest that "children have an interest in being raised by their biological parents."
Judge Holmes concurred separately to discuss why "animus" was not an appropriate analysis. Judge Holmes notes that the district judge "wisely" did not rely on animus, and that most of the other decisions invalidating same-sex marriage laws have "exercised the same forebearance." But, he noted, several other district judges have relied on animus, citing Baskin v. Bogan, Henry v. Himes, DeLeon v. Perry, and Obergefell v. Wymyslo - - - interestingly none of which are in the Tenth Circuit - - - and he used the concurrence to endeavor "to clarify the relationship between animus doctrine and same-sex marriage laws and to explain why the district court made the correct decision in declining to rely upon the animus doctrine."
In his relatively brief partially dissenting opinion, Judge Paul Kelly contended that there was no standing to challenge the constitutional amendment absent a challenge to the statute and would not reach the merits. However, he also disagreed on the merits, as he did in the panel's decision in Kitchen v. Herbert. For Judge Kelly, as he phrases it here:
Removing gender complementarity from the historical definition of marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process. Absent a fundamental right, traditional rational basis equal protection principles should apply, and apparently as a majority of this panel believes, the Plaintiffs cannot prevail on that basis. Thus, any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.
This will be the heart of the matter when - - - rather than if - - - these cases reach the United States Supreme Court. For now, however, the Tenth Circuit stayed its "mandate pending the disposition of any subsequently-filed petition for writ of certiorari."
July 18, 2014 in Courts and Judging, Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Sexual Orientation, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 15, 2014
Thursday, July 3, 2014
In an emergency motion for a Temporary Restraining Order filed today in Hassan v. Obama in the District Court for the District of Columbia, the petitioner relies on Monday's controversial decision by the United States Supreme Court in Burwell v. Hobby Lobby.
Petitioner, Imad Abdullah Hassan, a detainee at Guantánamo Bay, invokes the Religious Freedom Restoration Act (RFRA) to prevent the federal government from depriving him of " the right to participate in communal prayers during the Islamic holy month of Ramadan," a tenet of his religious faith.
As the motion outlines, the DC Circuit had previously held in Rasul v. Myers, 563 F.3d 527, 532-33 (D.C. Cir. 2009), that the Guantánamo Bay detainees are not protected “person[s]” within the meaning of the RFRA. The court in Rasul "bypassed the dictionary definition of “person” and instead looked to prior case law prescribing the scope of the word “person” for purposes of the Fourth and Fifth Amendments— which did not, in the Rasul court’s view, apply to nonresident aliens."
However, the motion argues this is a "dead letter" after the Court's decision in Hobby Lobby which "eviscerates the reasoning in Rasul and makes clear that Petitioner, as a flesh-and-blood human being, is among the 'person[s]' protected by the RFRA." Indeed, the court in Rasul held that in RFRA Congress merely "intended to incorporate the standard governing free exercise claims that prevailed before the Supreme Court's 1990 decision in Employment Division v. Smith," and that such claims did not include resident noncitizens. But in Hobby Lobby, the Justice Alito's opinion for the Court explicitly states:
the results would be absurd if RFRA merely restored this Court’s pre-Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith. For example, we are not aware of any pre-Smith case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond RFRA’s protective reach simply because the Court never addressed their rights before Smith?
[Opinion at 33].
Thus, the motion argues that
a nonresident alien Guantánamo Bay detainee, who inarguably has constitutional rights in what is de facto sovereign U.S. territory, see Boumediene v. Bush, 553 U.S. 723 (2008), must also enjoy the protections extended by the RFRA.
Hobby Lobby leads inexorably to the conclusion that the nonresident alien detainees at Guantánamo Bay are “person[s]” protected by the RFRA. The Dictionary Act definition of “person” includes “individuals.” 1 U.S.C. § 1. The Dictionary Act does not confine “individuals” to U.S. citizens, just as it does not confine “corporations” to U.S. corporations; nor does it confine “individuals” to U.S. residents. The Guantánamo Bay detainees, as flesh-and- blood human beings, are surely “individuals,” and thus they are no less “person[s]” than are the for-profit corporations in Hobby Lobby or the resident noncitizens whom Hobby Lobby gives as an example of persons to whom the RFRA must apply. The fact that the detainees are at Guantánamo Bay changes nothing, for Hobby Lobby makes clear that a “person” whose religious free exercise is burdened under color of law need not be a U.S. citizen or resident in order to enjoy the RFRA’s protections.
The application of Hobby Lobby to "persons" who are detainees at Guantánamo Bay might be an unforeseen consequence of the decision, but the motion makes a convincing argument that it is a logical one grounded in the Court's holding and language.
Monday, June 16, 2014
Unanimous Supreme Court Returns Susan B Anthony List v. Driehaus for Decision on Election Law Merits
The Court's unanimous opinion in Susan B. Anthony List v. Driehaus, a challenge to an Ohio election law prohibiting false statements, reversed the Sixth Circuit's determination that the case was not ripe. Recall that Driehaus had filed a complaint with the Ohio Elections Commission about an advertisement from Susan B. Anthony List, but the Sixth Circuit held the SB List could not show "an imminent threat of prosecution at the hands of any defendant" and thus could not "show a likelihood of harm to establish that its challenge is ripe for review."
As we discussed after oral argument, the Justices seemed inclined to find the courts had Article III power to hear the case, although there was some doctrinal fuzziness whether the case should be analyzed as one of "standing" or one of "ripeness." Footnote 5 of the opinion by Justice Thomas for the Court resolves the question firmly in favor of standing:
The doctrines of standing and ripeness “originate” from the same Article III limitation. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 335 (2006). As the parties acknowledge, the Article III standing and ripeness issues in this case “boil down to the same question.” Med- Immune, Inc. v. Genentech, Inc., 549 U. S. 118, 128, n. 8 (2007); see Brief for Petitioners 28; Brief for Respondents 22. Consistent with our practice in cases like Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 392 (1988), and Babbitt v. Farm Workers, 442 U. S. 289, 299, n. 11 (1979), we use the term “standing” in this opinion.
The Court reiterated the established criteria: (1) an "injury in fact" (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a likelihood that the injury “will be redressed by a favorable decision," noting that the hurdle for the organization of Susan B. Anthony List was the "injury in fact" requirement. To establish "injury in fact," the organization had to demonstrate the threat of future prosecution by the election board was sufficiently "concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” and "certainly impending,” or there is a “‘substantial risk’ that the harm will occur.”
The shadow of the First Amendment was apparent in the Court's reasoning: "The burdens that [Election] Commission proceedings can impose on electoral speech are of particular concern here."
The Court's relatively short and unanimous opinion breaks no new ground. It draws on establishing standing precedent which it applies in a relatively straightforward manner, and then quickly dispatches the "prudential" rationale for rejecting jurisdiction.
However, it's worth considering as a contrast a case uncited by the Court - - - Los Angeles v. Lyons (1983) - - - in which a deeply divided Court decided that Adolph Lyons did not have standing to challenge the City of Los Angeles police department's sometimes fatal practice of administering a "chokehold" to persons it stopped for traffic violations. As Justice Marshall wrote in the dissenting opinion (joined by Justices Brennan, Blackmun, and Stevens):
Since no one can show that he will be choked in the future, no one — not even a person who, like Lyons, has almost been choked to death — has standing to challenge the continuation of the policy. The city is free to continue the policy indefinitely as long as it is willing to pay damages for the injuries and deaths that result. I dissent from this unprecedented and unwarranted approach to standing.
Perhaps Susan B. Anthony List demonstrates that Justice Marshall's view has proven to be correct and that Lyons can now be disregarded. Or perhaps, studies such as this and this are correct that the status of Susan B. Anthony List as an anti-abortion organization and the status of Adolph Lyons as an African-America male confronting law enforcement are just as important as doctrine.
Tuesday, May 20, 2014
In his opinion in Whitewood v. Wolf, Judge John E. Jones, III, announced that Pennsylvania would "join the twelve federal district courts across the country" that had declared their respective same-sex marriage bans unconstitutional.
The judge considered both a Due Process and Equal Protection challenge to Pennsylvania's statutory ban on same-sex marriage and found both had merit.
Regarding due process, he concluded that
the fundamental right to marry as protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution encompasses the right to marry a person of one’s own sex. . . . that this fundamental right is infringed upon by 23 Pa. C.S. § 1102, which defines marriage as between one man and one woman and thus precludes same-sex marriage. Accordingly, 23 Pa. C.S. § 1102 is unconstitutional.
Judge Jones' equal protection analysis first considered the proper level of scrutiny for sexual orientation and after extensive discussion of the factors (a modified Carolene Products analysis), he concluded that sexual orientation classifications are quasi-suspect and deserve heightened scrutiny. The application of this standard is relatively brief:
Significantly, Defendants claim only that the objectives are “legitimate,” advancing no argument that the interests are “important” state interests as required to withstand heightened scrutiny. Also, Defendants do not explain the relationship between the classification and the governmental objectives served; much less do they provide an exceedingly persuasive justification. In essence, Defendants argue within the framework of deferential review and go no further. Indeed, it is unsurprising that Defendants muster no argument engaging the strictures of heightened scrutiny, as we, too, are unable to fathom an ingenuous defense saving the Marriage Laws from being invalidated under this more-searching standard.
Resembling many of the other opinions, including yesterday's opinion from an Oregon federal judge, Judge Jones' 39 page opinion acknowledges its part in a growing trend, cites all the other federal cases, includes a reference to Scalia's dissenting opinion in Windsor to support its rationale, and includes an acknowledgement of the divisiveness of the issue but invokes a historical perspective (represented by Plessy v. Ferguson and Brown v. Board of Education) in its relatively brief conclusion.
It differs from other similar opinions in explicitly resting its Equal Protection analysis in intermediate scrutiny befitting a quasi-suspect class.
But the doctrinal differences are less noteworthy than the tide of federal judges (and some state judges) striking down their state laws banning same-sex marriage.
Thursday, May 8, 2014
ConLawProf Sheryll Cashin's new book, Place Not Race: A New Vision of Opportunity in America is just out. In it, Cashin looks at the demise of affirmative action presaged by Supreme Court cases such as this Term's Schuette and last Term's Fisher v. UT, and argues that substituting "place" for "race" in diversity admissions "will better amend the structural disadvantages endured by many children of color, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders."
Here's a bit from a longer excerpt on abc:
Race-based affirmative action buys some diversity for a relative few, but not serious inclusion. It doesn’t help to build a movement to attack underlying systems of inequality that are eating away at the soul of our nation. Among other transformations, we need corporations that share more profits with workers and pay them equitably. We need a financial system that doesn’t exploit average people. We need governments that invest wisely in pre-K-12 education and the nonselective higher education that at least half of high school graduates attend. We also need government that does not over-incarcerate high school dropouts of all colors.
Cashin contends that "race" is both over-inclusive and under-inclusive, an analysis that will be familiar to anyone in the affirmative action cases employing strict scrutiny. But Cashin's slant is different. For Cashin, it isn't necessarily that we are post-racial. Instead, "given our nation’s failure to live up to Brown, we have an obligation to acknowledge and ameliorate the injustices of segregation—a moral imperative more important than diversity itself."
An interesting read for anyone considering affirmative action, race, and equality.
Wednesday, May 7, 2014
If the defining issue of the United States is inequality, how is the nation's highest Court addressing that issue?
According to Michele Gilman's new article, A Court for the One Percent: How the Supreme Court Contributes to Economic Inequality, forthcoming in the Utah Law Review and available on ssrn, the Court is decidely part of the problem rather than part of the solution.
Gilman's article is valuable because it traverses several different doctrinal areas. Obviously, she discusses Citizens United. But - - - refreshingly - - - she argues that "Citizens United is just one piece of a larger problem." She contends that this problem did not begin with the Roberts' Court, as her discussions of Harris v. McCrae, San Antonio Independent School District v. Rodriguez, and Dandridge v. Williams illustrate. Ultimately, she suggests that the Court stands in the way of addressing inequality because the legislative and policy suggestions that have worked in other "affluent democracies" will be deemed unconstitutional in the United States:
We currently have a Court majority that is not only unsympathetic to inequality arguments, but also seemingly oblivious to (or skeptical of) the connection between government policies and market outcomes. The Court has ruled that it is up to the legislative branch, rather than the Courts, to remedy economic inequality. Yet, the Court has doomed legislative enactments that would ameliorate inequality, such as desegregation plans, campaign finance reforms, and consumer protection laws. Conversely, when legislatures enact policies that tend to worsen economic inequality or magnify its effects, the Court defers, such as school financing laws and voter identification requirements. In short, the Court’s rulings consistently sustain policies that create or maintain economic inequality.
Gilman has some explanations for this state of affairs, but, more importantly, she proposes a proactive five point plan of change. This important article is worth a read.
Sunday, February 9, 2014
Sexual Orientation Change Efforts Ban: Petition for Certiorari After Ninth Circuit Declines En Banc Review
Recall that the Ninth Circuit upheld the California statute in Pickup v. Brown in August 2013. The panel concluded that on the continuum between speech and conduct, California's SB 1172 landed on conduct, "where the state's power is great, even though such regulation may have an incidental effect on speech." Applying a rational basis standard, the court rejected the claim that California legislature acted irrationally.
The Ninth Circuit has issued an opinion and rejected en banc rehearing over a dissent by Judge O’Scannlain, joined by Judges Bea and Ikuta. The dissenting opinion began with a forceful "issue statement" worthy of an oral argument:
May the legislature avoid First Amendment judicial scrutiny by defining disfavored talk as “conduct”? That is what these cases are really about.
Interestingly, the original panel - - - Judge Susan Graber, joined by Chief Judge Alex Kozinski and Judge Morgan Christen - - - included an amended panel opinion accompanying the denial of the en banc rehearing. This amended panel opinion adds two passages that discuss United States Supreme Court precedent on the "conduct" issue with which the dissenters disagreed.
First, Judge Graber adds a brief discussion [in italics below] before the more detailed discussion of Ninth Circuit precedent:
The first step in our analysis is to determine whether SB 1172 is a regulation of conduct or speech. “[W]ords can in some circumstances violate laws directed not against speech but against conduct . . . .” R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992). “Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.” Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR II”), 547 U.S. 47, 62 (2006). The Supreme Court has made clear that First Amendment protection does not apply to conduct that is not “inherently expressive.” Id. at 66. In identifying whether SB 1172 regulates conduct or speech, two of our cases guide our decision: National Association for the Advancement of Psychoanalysis v. California Board of Psychology (“NAAP”), 228 F.3d 1043 (9th Cir. 2000), and Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).
Second, and more substantially, the amended opinion includes a discussion of Holder v. Humanitarian Law Project upon which the dissenting opinion relied, as well as expanding the reliance on Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR II”):
Plaintiffs contend that Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), supports their position. It does not.
As we have explained, SB 1172 regulates only (1) therapeutic treatment, not expressive speech, by (2) licensed mental health professionals acting within the confines of the counselor-client relationship. The statute does not restrain Plaintiffs from imparting information or disseminating opinions; the regulated activities are therapeutic, not symbolic. And an act that “symbolizes nothing,” even if employing language, is not “an act of communication” that transforms conduct into First Amendment speech. Nev. Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2350 (2011). Indeed, it is well recognized that a state enjoys considerable latitude to regulate the conduct of its licensed health care professionals in administering treatment. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 157 (2007) (“Under our precedents it is clear the State has a significant role to play in regulating the medical profession.”).
In sharp contrast, Humanitarian Law Project pertains to a different issue entirely: the regulation of (1) political speech (2) by ordinary citizens. The plaintiffs there sought to communicate information about international law and advocacy to a designated terrorist organization. The federal statute at issue barred them from doing so, because it considered the plaintiffs’ expression to be material support to terrorists. As the Supreme Court held, the material support statute triggered rigorous First Amendment review because, even if that statute “generally functions as a regulation of conduct . . . as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message.” Humanitarian Law Project, 130 S. Ct. at 2724 (second emphasis added).6 Again, SB 1172 does not prohibit Plaintiffs from “communicating a message.” Id. It is a state regulation governing the conduct of state-licensed professionals, and it does not pertain to communication in the public sphere. Plaintiffs may express their views to anyone, including minor patients and their parents, about any subject, including SOCE, insofar as SB 1172 is concerned. The only thing that a licensed professional cannot do is avoid professional discipline for practicing SOCE on a minor patient.
This case is more akin to FAIR II. There, the Supreme Court emphasized that it “extended First Amendment protection only to conduct that is inherently expressive.” 547 U.S. at 66 (emphasis added). The Court upheld the Solomon Amendment, which conditioned federal funding for institutions of higher education on their offering military recruiters the same access to campus and students that they provided to nonmilitary recruiters. The Court held that the statute did not implicate First Amendment scrutiny, even as applied to law schools seeking to express disagreement with military policy by limiting military recruiters’ access, reasoning that the law schools’ “actions were expressive only because the law schools accompanied their conduct with speech explaining it.” Id. at 51, 66. Like the conduct at issue in FAIR II, the administration of psychotherapy is not “inherently expressive.” Nor does SB 1172 prohibit any speech, either in favor of or in opposition to SOCE, that might accompany mental health treatment. Because SB 1172 regulates a professional practice that is not inherently expressive, it does not implicate the First Amendment.
It's fair to say that these passages - - - incorporating United States Supreme Court cases - - - are intended to communicate to the Supreme Court Justices why the Ninth Circuit panel opinion does not merit review.
A split in the circuits does not seem likely. A New Jersey federal judge upheld the similar New Jersey statute prohibiting sexual conversion therapy under similar rationale.