Friday, July 18, 2014

Tenth Circuit on the Oklahoma Same-Sex Marriage Ban

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.

Screen Shot 2014-07-18 at 2.04.37 PMThe 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

Daily Video: Dahlia Lithwick on Daily Show on Supreme Court

Worth a watch:

Dahlia Lithwick in conversation about McCullen v. Coakley (the abortion buffer zone case)

The extended video is avaliable here.

 

July 15, 2014 in Recent Cases, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Thursday, July 3, 2014

Hobby Lobby Aftermath: Does "Person" in RFRA Include a Guantanamo Bay Detainee?

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. 

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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.

 

July 3, 2014 in Courts and Judging, Current Affairs, First Amendment, Free Exercise Clause, Recent Cases, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

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."  

SBA-20_logoAs 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.

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Steve Driehaus via

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.

June 16, 2014 in Elections and Voting, First Amendment, Oral Argument Analysis, Race, Recent Cases, Speech, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 20, 2014

Pennsylvania District Judge Declares State's Same-Sex Marriage Ban Unconstitutional

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.

800px-1827_Finley_Map_of_Pennsylvania_-_Geographicus_-_Pennsylvania-finley-1827
1827 Finley map of Pennsylvania

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.

May 20, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fundamental Rights, Opinion Analysis, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, May 8, 2014

Daily Read: Sheryll Cashin's "Place Not Race"

CashinConLawProf 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.

Cover

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.

May 8, 2014 in Affirmative Action, Books, Equal Protection, Fourteenth Amendment, Race, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 7, 2014

Daily Read: Michele Gilman on the "Court for the One Percent"

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
Professor Michele Gilman

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.

May 7, 2014 in Equal Protection, Fourteenth Amendment, Race, Recent Cases, Reproductive Rights, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Sunday, February 9, 2014

Sexual Orientation Change Efforts Ban: Petition for Certiorari After Ninth Circuit Declines En Banc Review

Liberty Counsel, the organization that challenged California's ban on reparative therapy, has filed a petition for writ of certiorari in the United States Supreme Court.

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.

Inside_my_head_croppedInterestingly, 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.

[image via]

February 9, 2014 in Courts and Judging, First Amendment, Opinion Analysis, Recent Cases, Sexual Orientation, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, January 30, 2014

Stop and Frisk: NYC Mayor Abandons Appeal in Floyd v City of NY

 NYC's practice of stop and frisk has been controversial in the streets and in the courts.  Recall

that in August 2013, Judge Shira Scheindlin found the New York City Police Department's stop and frisk policies unconstitutional as violative of equal protection.  Judge Scheindlin's exhaustive opinion in Floyd v. City of New York was accompanied by an extensive order, setting out remedies, including monitoring.  By a very brief opinion, Judge Scheindlin's decision was stayed by the Second Circuit - - - and Judge Scheindlin removed.  The Second Circuit later reaffirmed its decision, but in more moderate and explanatory tones. 

But before the Second Circuit could issue an opinion on the merits, NYC elected a new mayor, who today announced an agreement in Floyd v. City of New York.  Mayor Bill deBlasio (pictured below) announced that NYC has asked for a remand of the appeal to the district court, and has agreed to a court-appointed monitor who will serve for three years, overseeing the NYPD’s reform of its stop-and-frisk policy and reporting to the court.

 

Deblasiolarge[image via]

 

January 30, 2014 in Courts and Judging, Criminal Procedure, Equal Protection, Race, Recent Cases | Permalink | Comments (1) | TrackBack (0)

Wednesday, January 22, 2014

Bipartisan Bills Introduced to Amend Voting Rights Act

Senator Patrick Leahy (D-VT) and Representatives Jim Sensenbrenner (R-WI) and John Conyers (D-MI) introduced legislation last week that would amend the Voting Rights Act and recalibrate the coverage formula for preclearance.  The legislation responds to the Supreme Court's ruling last summer in Shelby County v. Holder, striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement.  That ruling left Section 5 preclearance nearly a dead letter (although litigants could still seek to have a court order a jurisdiction to bail-in to preclearance under Section 3). 

Our Shelby County coverage is here and here (with links to most of our other posts on the case).

The bills would update the coverage formula to include states that have 5 or more voting rights violations during the previous 15 years and political subdivisions that have 3 or more voting rights violations during the previous 15 years.  (Coverage would continue for 10 years, unless the jurisdiction gets a court order releasing it.)  This new formula would cover Georgia, Louisiana, Misissippi, and Texas, but not Alabama, Arizona, Florida, North Carolina, South Carolina, and Virginia. 

The bills also contain a number of other provisions, perhaps most notably expanding Section 3 bail-in so that litigants can ask a court to bail-in a jurisdiction when that jurisdiction has intentionally discriminated (as now) and for any other violation of the VRA.  Ari Berman over at The Nation has a nice summary.

The new provisions will undoubtedly be challenged when and if they're enacted.  On the one hand, they address a major concern of the Court in Shelby County: they update the coverage formula to use more current violations as the basis for coverage.  But on the other hand, they still treat states differently (and potentially run afoul of the Court's new-found "equal sovereignty" doctrine), and the state-wide formula does not account for actual voter turn-out (although the political subdivision formula does) and neither formula addresses the number of elected officials--data that the Court found at least relevant in its ruling.

January 22, 2014 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (1) | TrackBack (0)

Monday, January 13, 2014

New Report on the Efficacy of NSA Surveillance of Telephony Metadata

A new report from the New America Foundation is entitled with the question "Do NSA's Bulk Surveillance Programs Stop Terrorists?" 

In brief, the answer it proposes is "no."

The report is authored by Peter Bergen, David Sterman, Emily Schneider, and Bailey Cahall.  As Cyrus Farivar over at Ars Technica points out, the lead author Peter Bergen is well known as "a journalist and terrorism analyst who famously interviewed Osama bin Laden for CNN in 1997."

The report confirms federal District Judge Richard Leon's statement in his opinion in Klayman v. Obama that "the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature."   (emphasis in original).   Recall that Judge Leon issued a preliminary injunction against the surveillance, although he then stayed it.

Recall also that another federal district judge dismissed a complaint raising essentially the same issues a week later in American Civil Liberties Union v. Clapper.

With President Obama evaluating the NSA surevillance program including the Recommendations from President's NSA Surveillance Review Group and with the question of whether the NSA's surveillance extends to members of Congress being asked,  this newest report deserves to be read closely.  If there is a balance to be struck between security and liberty, the efficacy of the security measures are certainly relevant.

January 13, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Fourth Amendment, Privacy, Recent Cases, Scholarship, State Secrets, Theory | Permalink | Comments (0) | TrackBack (0)

Sunday, November 24, 2013

Sunday Dress: Profiling Clothes and Stop and Frisk

As police and state officials struggle to develop "objective" criteria that might support reasonable suspicion for a stop and frisk in light of constitutional issues (which we last discussed here), relying clothing and other attire may not be a good idea.

  Hoodie

 

Read more on 1584.

November 24, 2013 in Equal Protection, Race, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Saturday, November 23, 2013

Keeping Up With the Second Circuit's Stop and Frisk Decisions

The Second Circuit late Friday entered yet another decision in In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., this time on four motions before the panel.  Recall that the Second Circuit panel previously entered an opinion clarifying its removal of District Judge Shira Scheindlin after its original brief order issuing a stay and removing her as judge, an occurrence that is apparently not so rare.   Judge Shira Scheindlin's opinions and orders in Floyd v. City of New York and in Ligon v. City of New York  found the NYPD's implementation of stop and frisk violative of equal protection.

In this most recent order from the Second Circuit panel, it denied NYC's motion to vacate Judge Scheindlin's orders and opinions, rather than issuing a stay.  This move by NYC - - - given that a change in mayors is imminent - - - certainly had political interpretations.  But whatever NYC's motives, the Court rejected the invitation to vacate the opinions. 

The Second Circuit panel also denied the motions seeking intervention by Judge Scheindlin, essentially characterizing them as moot given the panel's clarifying order and the denial of the motion to vacate.   However, the panel did take the opportunity to disagree with the motion's representation that the panel did not have access to the transcript of proceedings in the related case upon which it based its findings that Judge Scheindlin may have committed an improper application of the Court’s “related case rule.”  The Second Circuit panel stated:

A review of the record of the Court of Appeals, and of the October 29, 2013 extended oral argument in these cases, will reveal that the panel members had the transcript of the December 21, 2007 proceeding in front of them during the hearing, and that they asked questions in open court regarding its substance. For example, during the oral argument, one member of the panel twice referred to the proceedings in detail, and clearly noted that he was quoting from page 42 of the December 21, 2007 transcript. Our October 31, 2013 order specifically cited the transcript by caption, docket number, and date, and it included quotations that had not been reported in the New York Times article that was cited, or in any other public news report known to the panel.

It's interesting that the Second Circuit panel took time to refute the contention with specifics - - - and perhaps it is important that the panel also noted that the assertion that it did not have the transcript was being "echoed" by "other movants in the case," with this citation:

See, e.g., Br. of Amici Curiae Six Retired United States District Court Judges and Thirteen Professors of Legal Ethics, Ligon v. City of New York, No. 13-3123, Dkt. 221, Floyd v. City of New York, No. 13-3088, Dkt. 313, at 14.

The Second Circuit panel surely wants to correct the record about the record on this point.

November 23, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, Equal Protection, Race, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Sunday, November 17, 2013

Religious Freedom for Corporations: Hypotheticals from Seventh Circuit Judge Rovner

The issue of religious freedom for secular for-profit corporations, whether under the statutory scheme of Religious Freedom Restoration Act or the First Amendment, in the context of the ACA's so-called contraceptive mandate is a contentious and complicated one.  Here's an overview of (and  reaction to) the issue and cases; after which the Seventh Circuit (again) rendered an opinion.

RovnerFor those teaching, writing, or thinking about the issues, Judge Ilana Rovner (pictured), dissenting in the Seventh Circuit's opinion in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, offers three provocative hypotheticals.  [For those interested in more about Judge Rovner, there's an interesting interview from the Illinois Supreme Court Commission on Professionalism in a brief video available here].

Rovner's hypotheticals draw on the ACA as well as other federal laws and are especially helpful because they provide the statutory schemes as well as the facts.

In the first, an employee has ALS, commonly known as Lou Gehrig’s Disease, and has been accepted into a clinical trial testing the effectiveness of an embryonic stem-cell therapy on ALS.  The employer software company/owner's plan would cover only the costs of the employee's routine care associated with the stem cell therapy, and not the costs of the stem cell therapy itself, but the employer nevertheless believes that by covering routine care, the company plan would be facilitating his participation in a practice to which he objects on religious grounds.

In the second, the employer corporation's sole owner is "a life-long member of the Church of Christ, Scientist. Christian Science dogma postulates that illness is an illusion or false belief that can only be addressed through prayer which realigns one’s soul with God." The owner believes that "his company’s compliance with the ACA’s mandate to cover traditional medical care would be a violation of his religious principles."

In the third hypothetical, the employer corporation's owners condemn same-sex marriage and homosexuality as part of their religious views.  One of their employees seeks time off under the Family and Medical Leave Act to attend, with his husband, the birth of their child through a surrogate arrangement.  The employers not only refuse the unpaid leave under the FLMA, they terminate him, because neither the owners nor their company can in any way recognize or facilitate such an immoral arrangement against their religious beliefs.

These hypotheticals would make a terrific in class discussion.  They appear on pages 68 - 76 of the opinion; and for convenience, without accompanying footnotes, below.

 

Continue reading

November 17, 2013 in Cases and Case Materials, First Amendment, Interpretation, Medical Decisions, Opinion Analysis, Recent Cases, Religion, Reproductive Rights, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Sunday Dress: Confederate Flag Attire, Kayne West, and Schools

Rapper and celebrity Kayne West is selling tour t-shirts with an image of the Confederate flag and provoking controversy, as this video shows:

 

But what if a student wanted to wear such a shirt to public school? 

Last month, the United States Supreme Court denied a petition for writ of certiorari to the Fourth Circuit's decision in Hardwick v. Heyward, thus continuing its refusal to hear cases in which circuit courts have upheld the ability of schools to prohibit Confederate flag gear or apparel against a First Amendment claim by students.  

Applying  Tinker v. Des Moines Independent Community School District, the circuit and district courts have generally held that there is a likelihood of substantial dispruption, whether or not the school has had a history of racial violence, and whether or not there is agreement that the meaning of the Confederate flag is connected to racism or even race.

More about the issue of wearing the Confederate flag in schools is in my column for the London School of Economics blog. 

November 17, 2013 in Cases and Case Materials, First Amendment, Race, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Friday, September 27, 2013

New Jersey Judge Extends Windsor to Find State Ban on Same-Sex Marriages Unconstitutional

In a 55 page opinion today in Garden State Equality v. Dow, Mercer County Superior Court Judge 316px-LGBT_flag_map_of_New_Jersey.svgMary Jacobson granted summary judgment to the plaintiffs finding that NJ's same-sex marriage ban violated the state constitution.  The judge held that New Jersey's civil union scheme, considered an acceptable remedy for any violation of the state's equal protection clause by the NJ Supreme Court in Lewis v. Harris (2006), was no longer sufficient to satisfy state constitutional law given the United States Supreme Court's invalidation of DOMA last June in Windsor v. United States. 

Judge Jacobson concluded:

Because plaintiffs, and all same-sex couplies in New jersey, cannot access many federal marital benefits as partners in civil unions, this court holds that New Jersey's denial of marriage to same-sex couples now violates Article 1, Paragraph 1 of the New Jersey Constitution as interpreted by the New Jersey Supreme Court in Lewis v. Harris

This is an interesting - - - but totally predictable - - - use of Windsor to undermine the very rationales of the state's highest court's determination that civil unions would satisfy equality concerns. 

The judge admits that the doctrinal landscape is murky, but also that it is rapidly changing.   For this judge, effectuating the holding of the New Jersey Supreme Court in Lewis v. Harris that the state constitution required same-sex couples to be able to obtain all the same rights and benefits available to opposite sex couples compels the extension of marriage to same-sex couples.

In only a very few other states would similar reasoning be applicable: Illinois, Hawai'i, and Colorado have civil union laws but not same-sex marriage.  Other states having civil unions also allow same-sex marriages or are "converting" civil unions to marriages.

As for New Jersey, odds are the state will appeal, although political considerations might weigh heavily.

September 27, 2013 in Equal Protection, Family, Recent Cases, Sexual Orientation, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 25, 2013

Randall Kennedy at NY Historical Society on The Supreme Court and Affirmative Action

October 3, 2013, 6:30 pm, in NYC

Free for Law Students and Faculty

Required registration and more information here.

Screen Shot 2013-09-25 at 3.47.17 PM

September 25, 2013 in Affirmative Action, Courts and Judging, Current Affairs, Race, Recent Cases, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 24, 2013

Baby Veronica's Painful Aftermath

Cherokeelongfacemask
Cherokee Face Mask
The aftermath of the United States Supreme Court's decision in Adoptive Couple v. Baby Girl, known as the "Baby Veronica" case, has been quite painful for the parties.  Recall that the Court's 5-4 decision concluded that the Indian Child Welfare Act, ICWA, would not be violated by the adoption of the child by a white couple.  The constitutional issue of "racial classifications" (rather than Indian sovereignty) loomed, but was not directly engaged.

The Oklahoma Supreme Court dissolved the emergency stay of the adoption yesterday in Brown v. DeLapp.  The majority's order is accompanied by two dissenting opinions, each of which describe the various proceedings and holdings, including the South Carolina Supreme Court's decision that did not remand for a "best interests of the child" determination, but decided to "remand this case to the Family Court for the prompt entry of an order approving and finalizing Adoptive Couple's adoption of Baby Girl."

Much of the press has been highly sympathetic to the adoptive parents, but also worth a read is an article from Indian Country Today Media Network.

 

September 24, 2013 in Cases and Case Materials, Courts and Judging, Current Affairs, Family, Race, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Sunday, September 15, 2013

Daily Read: The New Yorker on Justice Ginsburg, Fisher, and Footnote 4

450px-Milk_glassOver at the New Yorker blog, Lincoln Caplan's piece, "Justice Ginsburg and Footnote Four" analyzes Ginsburg's discussion last week at the National Constitution Center, arguing that one of her statements "deserves more attention than it has gotten."

Ginsburg stated that her dissent last term in Fisher v.  University of Texas Austin, regarding judicial review of  affirmative-action plans of colleges and universities, "was inspired by a 1938 ruling not mentioned in the dissent—actually, by one of its footnotes."  That most famous footnote - - - footnote four - - -of United States v. Carolene Products, is for many (including Caplan) the foundation of "a coherent justification for unelected justices to overturn legal decisions of elected officials when the fairness of the Constitution, and of democracy, is at stake."  

Recall that the 1938 case of  Carolene Products involved a federal statute regulating the shipment of "filled milk" (skimmed milk to which nonmilk fat is added so that it may seem to be like whole milk or even cream).   It may be that this case was also on Ginsburg's mind during the oral arguments of another one of last term's cases:  In her questioning of Paul Clement, who represented BLAG, in United States v. Windsor about the constitutionality of DOMA, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage."   As we noted at the time, Ginsburg's allusion would have special resonance for those who recalled Carolene Products.

 

September 15, 2013 in Affirmative Action, Courts and Judging, Fifth Amendment, Food and Drink, Fourteenth Amendment, Fundamental Rights, Interpretation, Recent Cases, Sexual Orientation, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Saturday, September 7, 2013

CFP: LBJ's Great Society at 50, MAPOC Legal Scholarship Conference

From an announcement:

19th Annual Mid-Atlantic People of Color
Legal Scholarship Conference 2014
Hosted by the University of Baltimore School of Law
Baltimore, MD
January 23-25, 2014

–      Conference Theme & Call for Papers –

President Lyndon B. Johnson’s Great Society and Beyond:
The Historical and Contemporary Implications of Progressive Action and Human Fulfillment
Honoring and Critiquing the 50th Anniversary of Johnson’s Vision



496px-LBJ_National_Portrait_GalleryIn May 1964, President Lyndon Baines Johnson unveiled his revolutionary plans for the Great Society.  As he explained it, Americans “have the opportunity to move not only toward the rich society and the powerful society, but upward to the Great Society. . . .  The Great Society rests on abundance and liberty for all. It demands an end to poverty and racial injustice.”

According to Doris Kearns Goodwin, who wrote Lyndon Johnson and the American Dream, Johnson’s Great Society would be based on “progressive action” and the “possibilities for human fulfillment.”  This action and fulfillment meant that regaining control of our society required us to end policies that threatened and degraded humanity.

Johnson’s Great Society reforms, included the Voting Rights Act of 1965, Medicare, Medicaid, Equal Opportunity Act, Elementary and Secondary Education Act, Social Security expansion, the Earned Income Tax Credit, the Higher Education Act, Head Start, the Civil Rights Act of 1964, the Housing and Urban Development Act of 1965, and the Open Housing Act of 1968.  These laws extended and expanded the Bill of Rights and continued and expanded the programs initiated in Roosevelt’s New Deal of the 1930s and Truman’s Fair Deal in the late 1940s and early 1050s.  As a result of LBJ’s programs, America’s official poverty rate declined throughout the 1960s, reaching a low of 11.2 percent in 1974, down from 19 percent in 1964, and most recently settling at 15.1 percent in 2010.  According to Dylan Matthews, who wrote Poverty in the 50 Years Since ‘The Other America,’ in Five Charts, Johnson’s Great Society programs, which included the War on Poverty, “made a real and lasting difference.”  Moreover, according to Demos, an estimated 40 million Americans avoided official poverty due to such programs as food stamps and Medicaid.

Unfortunately, what is also true is that the Vietnam War, which Johnson escalated and only at the end of his administration moved to end, crippled his domestic economic policies and undermined his goals for true racial equality.   Despite the War on Poverty and dramatic changes in Civil Rights, racially concentrated poverty remains with us.  Since the Johnson years, America has weathered the recessions of the 1980s and early 1990s, the late ‘90s dot com bubble, our current recession, the national security encroachment on civil liberties, the rise and fall of the Occupy Movement, the waning of the Arab Spring, and two middle east wars since 9-11.

It is clear that Johnson’s Great Society programs have saved millions of Americans from the depth of official poverty.  It also true that Johnson’s vision, to which he was truly committed, staggered and failed when the civil rights movement dovetailed with political marginalization, economic inequality, pervasive racial discrimination, and imperialist policies.  The Moynihan Report, the Watts Riots and urban unrests, and the emotional and financial suck of Vietnam prevented Johnson from deeply redressing America’s lingering poverty.

At MAPOC 2014, we intend to explore the furthest implications of President Johnson’s domestic and foreign policies, especially the impact of these policies on progressive action and human fulfillment, as we collectively explore and analyze the contemporary implications of Johnson’s Great Society.  From these implications, the conference planning committee is seeking papers and panel proposals on the following substantive but not exhaustive subjects:

-- A Hand Up:  The Meaningful Tension Between Formal Equality and Substantive Outcomes under the Civil Rights Act of 1964
-- Beyond Legislative Bogs and Dangerous Political Animals:  President Obama’s Legislative Agenda and the Limits of Second-Term Progressivism
--  Endangered Citizens?: Rights and Remedies after State v. Zimmerman
-- Equality, Choice, and Happiness:  the Rise and Fall of DOMA
-- Guns or Butter:  Social Welfare Programs, Modern Problems of Central Banks, Debt Slavery, and Foreign Policies
-- Medicare, Healthcare, and Welfare:  the Poor, the Elderly, and the Needy
-- Moynihan and the Contemporary (In)Stability of the Black Family
-- Racial (Dis)Harmony Then and Today
-- Voting Rights:  Shelby County v. Holder and the Promise of One Citizen, One Vote

Paper submissions must include a working title, bios, abstract, and contact information.
Panel proposals must also include the foregoing information for each of the panel’s participants, and the organizer’s contact information, all of which must be submitted together only by the organizer.
Submit Papers and Panel Proposals by September 30, 2013 to: Reginald Leamon Robinson, Howard University, Conference Chair and Founder, MAPOC 2014: light_warrior@verizon.net.

[image: LBJ, National Portrait Gallery, via]

September 7, 2013 in Conferences, Elections and Voting, Equal Protection, Family, Federalism, Fundamental Rights, Gender, Race, Recent Cases, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)