Thursday, August 29, 2013

IRS Rules it will Recognize All Same-Sex Marriages

800px-United_States_Treasury_BuildingIn a 15 page ruling today, Revenue Ruling 2013-17, the IRS clarified that it will recognize

 a marriage of same-sex individuals that was validly entered into in a state whose laws authorize the marriage of two individuals of the same sex even if the married couple is domiciled in a state that does not recognize the validity of same-sex marriages.

The Department of Treasury also issued a  press release.

The Revenue Ruling applies and extends the Supreme Court's decision in United States v. Windsor in late June.  Essentially, the IRS ruled that interpreting "husband" and "wife" as gender-neutral terms was consistent with Windsor and a contrary interpretation would "raise serious constitutional questions."

As for domicile, the IRS ruled that the controlling domicile was the place where the marriage occurred.  While they are constitutional issues, the IRS also relied upon the practical:

Given our increasingly mobile society, it is important to have a uniform rule of recognition that can be applied with certainty by the Service and taxpayers alike for all Federal tax purposes. Those overriding tax administration policy goals generally apply with equal force in the context of same-sex marriages.

The ruling specifically excludes

individuals (whether of the opposite sex or the same sex) who have entered into a registered domestic partnership, civil union, or other similar formal relationship recognized under state law that is not denominated as a marriage under the laws of that state, and the term “marriage” does not include such formal relationships.

 

RR
[image: United States Treasury Building via]

August 29, 2013 in Recent Cases, Sexual Orientation, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 28, 2013

Daily Read: The importance of amicus briefs

An  ABA Journal article by Mark Walsh tells us that last Term, 2012-2013, was "another big one" for amicus curiae briefs at the United States Supreme Court: "Seventy of the 73 cases, or nearly 96 percent, that received full plenary review attracted at least one amicus brief at the merits stage."

The top amicus-attractors? 

The same-sex marriage cases of Windsor and Perry, with 96 and 80 respectively and the affirmative action case of Fisher, with 92.  

Shelby County v. Holder, the Voting Rights Act case, attracted 49 amicus briefs, including one from ConLawProf Patricia Broussard (second from right) and her students at FAMU College of Law, as pictured below.

Amicus1

Yet perhaps the most interesting aspect of the ABA Journal article is its chart displaying the citation rate of amicus briefs by Justice, with Sotomayor ranking at the highest end and Scalia and Alito at the lowest end.

Worth a look, especially for ConLawProfs writing, signing, or assigning amicus briefs.

RR

 

August 28, 2013 in Affirmative Action, Cases and Case Materials, Current Affairs, Fifteenth Amendment, Fourteenth Amendment, Profiles in Con Law Teaching, Race, Recent Cases, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 27, 2013

Daily Read: Ellis and Jones on the 50th Anniversary of the March on Washington for Jobs and Freedom

Several media and legal outlets are running impressive commentaries on this fiftieth anniversary of the March on Washington for Jobs and Freedom led by Martin Luther King, Jr.

476px-Dr._Martin_Luther_King_Jr._at_a_civil_rights_march_on_Washington_D.C._in_1963Here are two that should not be missed.

Over at ACS blog, Law Prof Atiba Ellis writes on "The Moral Hazard of American Gradualism: A Lesson from the March on Washington."  Ellis states, "the question we must confront in 2013 is whether we have been tranquilized into the lethargy of gradualism concerning the work that needs to be done."   Ellis highlights the Court's decisions last term in Shelby and in Fisher as examples of "the new American gradualism – retrogressive action under the cover of apathy, spurred by the myth of post-racialism and the supposed fear of constitutional overreach."

And on NPR's Morning Edition, journalist Michele Norris profiles Clarence B. Jones as an attorney and "guiding hand" behind the "I Have a Dream" speech, including the famous "promissory note" metaphor.  However, Norris also highlights Jones' memoir Behind The Dream, which had "some unlikely source material."  Indeed, Jones' memoir may be more accurate than most, since his memory was augmented by transcripts of every single phone conversation he had with King, courtesy of the FBI, in a wiretap authorized by Robert Kennedy as Attorney General.  The NPR story has a link to the FBI archive on King. 

RR
[image via]

 

August 27, 2013 in Affirmative Action, Books, Current Affairs, Executive Authority, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Scholarship, Theory, Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Saturday, August 10, 2013

Obama Administration Supports Town of Greece's Prayer on Certiorari to United States Supreme Court

In Galloway v. Town of Greece (New York), the Second Circuit held that the town's practice of legislative prayer "impermissibly affiliated the town with a single creed, Christianity."  

The Court granted the Town's peitition for writ of certiorari, and the Solicitor General has just filed the United States Government's brief supporting the Town. 

At issue is an application of Marsh v. Chambers (1983), in which the Court upheld the constitutionality of the Nebraska legislature's employment of a chaplain to lead a legislative prayer.  The majority opinion, authored by Chief Justice Burger, was seemingly not worried that the same chaplain had been employed for almost two decades, and relied upon the historical practice of legislative prayer, applying Lemon v. Kurtzman.

The Second Circuit in Town of Greece, however, looked at the content of the prayers and essentially found, as we phrased it here, "one invocation to Athena out of 130 is simply not sufficient" to meet the requirement of non-endorsement given that two-thirds of the prayers contained references to “Jesus Christ,” “Jesus,” “Your Son,” or the “Holy Spirit.”

Athena1
The Solicitor General's brief, however, argues that the court should not consider the content of the prayers.  The government argues:

Under the principles announced in Marsh, which relied heavily on the history of legislative prayer in this country, a prayer practice that is not problematic in the ways identified in Marsh (as petitioner’s practice concededly is not) does not amount to an unconstitutional establishment of religion merely because most prayer- givers are Christian and many or most of their prayers contain sectarian references. The unbroken history of the offering of prayer in Congress, for example, has included a large majority of Christian prayer-givers and a substantial number of prayers with identifiably sectarian references. Neither federal courts nor legislative bodies are well suited to police the content of such prayers, and this Court has consistently disapproved of government interference in dictating the substance of prayers.

Taken to its logical conclusion, the government's position here would disable the judiciary from considering the content of any prayer, including one that was vigorously and even violently sectarian.

RR
[image of Athena, via]

August 10, 2013 in Current Affairs, Establishment Clause, First Amendment, Recent Cases, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Thursday, August 1, 2013

Third Circuit on Hazleton Immigration Ordinance Redux

The Third Circuit has had yet another opportunity to review the constititionality of the city of Hazleton's extensive immigration ordinances in its new opinion in Lozano v. City of Hazleton [Pennsylvania].   Recall that the United States Supreme Court granted the City's petition for a writ of certiorari and vacated the Third Circuit's previous  decision  in light of Chamber of Commerce of United States of America v. Whiting.

In 2010, the Third Circuit panel, affirming the district court, had rendered an extensive 188 page opinion in unanimously finding that the two ordinances of Hazleton, Pennsylvania regulating immigration were pre-empted by the federal immigration scheme.  The employment provision in Hazleton made it unlawful “for any business entity” to “recruit, hire for employment, or continue to employ” or “permit, dispatch, or instruct any person” who is an “unlawful worker” to perform work within Hazleton, and required employer affidavits.   The ordinances also had a housing provision making it unlawful for landlords to rent to unlawful residents.

 

Miners’_children_and_houses_near_Hazelton,_Pa.,_U.S.A,_by_Singley,_B._L._(Benjamin_Lloyd)
Miners' children, Hazleton Pennsylvania circa 1900

In its new opinion, the panel - - - again consisting of Chief Judge McKee and Judge Nygaard, with the previous designated judge now replaced by Judge Vanaskie - - - found that Whiting, as well as the Court's subsequent decision in Arizona v. United States regarding the notorious SB1070, did not command a different result.  Instead, the court again concluded that " both the employment and housing provisions of the Hazleton ordinances are pre-empted by federal immigration law.”

 

Regarding the employment provisions of the Hazleton ordinance, the Third Circuit panel found that the Court's opinions in Whiting and Arizona did alter some of its previous analysis, but that the employment provisions of the Hazleton ordinance were so broad in their coverage of both actors and activities that they were an obstacle to the federal immigration law and were thus pre-empted. 

As to the housing provisions, the court found:

No part of Whiting or Arizona considered provisions of a state or local ordinance that, like the housing provisions here, prohibit, and define “harboring” to include, allowing unauthorized aliens to reside in rental housing. Moreover, nothing in Whiting or Arizona undermines our analysis of the contested housing provisions here. On the contrary, the Court‟s language reinforces our view that Hazleton‟s attempt to prohibit unauthorized aliens from renting dwelling units in the City are pre-empted.

Thus, the Third Circuit reaffirmed its view that the Hazelton ordinance is unconstitutional as pre-empted.

In considering whether or not to pursue a second petition for writ of certiorari to the United States Supreme Court, the City of Hazleton will undoubtedly be considering the extensive litigation costs it has already expended and deciding whether it should spend even more, although reportedly some costs have been paid by private contributions.

RR
[image via]

August 1, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Opinion Analysis, Preemption, Recent Cases, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 23, 2013

Ohio Federal Judge Enjoins State-DOMA: More Aftermath of Windsor

332px-Flag_Map_of_Ohio.svgIn a fifteen page opinion, federal district judge Timothy Black enjoined the application of Ohio's state DOMA provisions - - - both statutory and the state constitutional amendment - - - to a same-sex couple married out of state.  In Obergefell v. Kasich, the judge adapted the reasoning of the United States Supreme Court's June opinion in Court's United States v. Windsor, declaring section 3 of the federal Defense of Marriage Act, DOMA unconstitutional.  Judge Black's opinion is part of the aftermath of Windsor that we most recently discussed here.

Judge Black's opinion has a succinct discussion of equal protection doctrine and concludes,

Under Supreme Court jurisprudence, states are free to determine conditions for valid marriages, but these restrictions must be supported by legitimate state purposes because they infringe on important liberty interests around marriage and intimate relations.

In derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal.

Judge Black's opinion has a brief explicit mention of "animus," but the concept permeates the opinion.  For example, he notes that before the state enacted its DOMA provisions:

Longstanding Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. This legal approach is firmly rooted in the longstanding legal principle of “lex loci contractus” -- i.e., the law of the place of the contracting controls. Ohio has adopted this legal approach from its inception as a State.

Thus, for example, under Ohio law, as declared by the Supreme Court of Ohio in 1958, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins.

To be sure, the injunction is a limited one applicable to sympathetic facts.  One of the partners is a hospice patient and the relief requested regards the martial status and surviving spouse to be recorded on the death certificate.  Yet Judge Black's reasoning is not limited and opens the door to rulings that Ohio's DOMA provisions limiting state recognition of marriages to only opposite-sex marriages fails constitutional scrutiny under the Fourteenth Amendment's equal protection clause.

RR

July 23, 2013 in Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Opinion Analysis, Recent Cases, Sexual Orientation, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 16, 2013

More on the Aftermath of Windsor (DOMA) and Perry (Prop 8) decisions: California, Pennsylvania, Arkansas, North Carolina Litigation

The Court's decisions in United States v. Windsor, declaring section 3 of DOMA unconstitutional, and Perry v. Hollingsworth, holding that the "proponents" of Proposition 8 lacked standing to appeal a federal judge's declaration of Prop 8's unconstitutionality, have not settled the matter of the unconstitutionality of same-sex marriage restrictions. 

In what promises to be a continuing series, here are a few highlights:

494px-Flag-map_of_California.svg
In California, the home of Proposition 8, the litigation centers on Prop 8's constitutional status given that the Supreme Court held that the proponents did not have standing to appeal the federal district judge's holding that Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause.  The original injunction was stayed, and again stayed by the Ninth Circuit even as it affirmed the district judge, but after Perry, the Ninth Circuit dissolved the stay amid questions about the effect of Perry which we discussed here.

The proponents of Prop 8 have moved (back) to the state courts, filing Hollingsworth v. O'Connell on July 12 seeking a stay from the California Supreme Court.  Their basic argument is that a single federal judge should not have the power to declare a law unconstitutional for the entire state and they seek a mandate forbidding county clerks from issuing same-sex marriage licenses.  On July 16, the California Supreme Court declared - - - as a docket entry and without opinion - - - "The request for an immediate stay or injunctive relief is denied." It also granted the motions for counsel to proceed pro hac vice, so the case will presumably be moving forward. 

800px-Flag-map_of_Pennsylvania.svg

In Pennsylvania, a complaint in Whitewood v. Corbett was filed July 9, as a new constitutional challenge to the state's "little DOMA" provisions passed the same year as the federal DOMA, 1996  - - - 23 Pa. Consolidated Statute §1102 (defining marriage as between one man and one woman) and 23 Pa. Consolidated Statutes §1704 (declaring one man-one woman marriage as the strong public policy of state and refusing to recognizing same-sex out of state marriages).  The Complaint interestingly quotes and cites language from Windsor several times. For example:

¶10. The exclusion from marriage undermines the plaintiff couples' ability to achieve their life goals and dreams, threatens their mutual economic stability, and denies them "a dignity and status of immense import." United States v.Windsor, No.12-307, Slip Op., at 18 (U.S. June 26, 2013).  Moreover, they and their children are stigmatized and relegated to a second class status by being barred from marriage. The exclusion "tells[same-sex couples and all the world- that their relationships are unworthy" of recognition. Id. at 22-23.  And it "humiliates the ...children now being raised by same-sex couples" and "makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Id. at 23.

The Attorney General for Pennsylvania, Kathleen Kane, has reportedly declared she will not defend the constitutionality of the state statutes barring same-sex marriage. The Pennsylvania Governor, Tom Corbett, the named defendant and a Republican, as well as the state legislature, are presumably studying the holding regarding BLAG's standing in Windsor.

712px-Flag-map_of_Arkansas.svg

In Arkansas, the complaint in Wright v. Arkansas was filed in state court on July 2.  Arkansas has both a statute and constitutional amendment DOMA (the belt and suspenders approach).  The 29 page complaint does not quote or cite Windsor, but does claim that the Arkansas prohibition of same-sex marriage violates the Due Process and Equal Protection Clauses of both the state and federal constitution, as well as violating the Full Faith and Credit Clause.  First reports are that the state will defend the lawsuit.

613px-Flag-map_of_North_Carolina.svg

In addition to new complaints filed post-Windsor (Perry), ongoing litigation will certainly be changed.  For example, the North Carolina federal court complaint in Fisher-Borne v. Smith challenging North Carolina's failure to provide so-called second-parent adoption is being amended - - - reportedly with agreement of the state - - - to include a claim challenging the state's prohibition of same-sex marriage. 

While one message of Windsor and even Perry could be understood as being that marriage, same-sex or otherwise, is a matter of state law, another message of Windsor is certainly that there are constitutional problems prohibiting same-sex marriage. 

 

800px-Samesex_marriage_in_USA.svg 

 

Screen Shot 2013-07-16 at 10.35.33 AM

With a patchwork of state laws, this is a fertile landscape for continuing litigation.

RR
[all images Wikimedia; final image here]

July 16, 2013 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fifth Amendment, Fourteenth Amendment, Interpretation, News, Recent Cases, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 2, 2013

What if Supreme Court Opinions Were Anonymous?

Last Term's opinions - - - especially its opinions regarding the constitutionality of the VRA in Shelby, of DOMA and Prop 8 in Windsor and Perry, and of UT's affirmative action plan in Fisher - - - continue to spark debate and commentary.  As well they should.  But much of our discussions focus on individual Justices:  Is Justice Kennedy the "first gay Justice?"   Is Justice Alito really rude?   Is Chief Justice Roberts playing a "long game?"  And what about the tumblr "Notorious R.B.G.?  Or @SCOTUS_Scalia, a twitter account?  

DonkeyHoteySCOTUS
 
  

In their 2010 law review article, Judicial Duty and the Supreme Court’s Cult of Celebrity, available on ssrn, Craig Lerner and Nelson Lund observed that there was a huge dissonance between the personality portrayed in confirmation hearings and the outsized personality on the bench and suggested four Congressional reforms.  Their first proposal: 

Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully.

They contend, "[t]ruly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work."

Their article contains an excellent discussion of the problem of "celebrity," but little discussion of the constitutionality of a Congressional mandate for anonymity or for their other proposals.  Certainly, should the anonymity proposal be enacted, there would be a constitutional separation of powers challenge.  Although who would have standing?  And what about recusal?

 RR

 [image DonkeyHotey via]

July 2, 2013 in Affirmative Action, Cases and Case Materials, Congressional Authority, Courts and Judging, Current Affairs, Elections and Voting, Equal Protection, Gender, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Friday, June 28, 2013

Two Questions in the Aftermath of DOMA and Prop 8 Decisions

In the wake of the Court's decisions in United States v. Windsor, declaring section 3 of DOMA unconstitutional, and Perry v. Hollingsworth, holding that the "proponents" of Proposition 8 lacked standing to appeal a federal judge's declaration of Prop 8's unconstitutionality, many questions remain. 

LADY_JUSTICE_15inchesHere are two.

The first question is the status of Proposition 8.  Recall that the federal district judge held Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause.   The district judge's opinion enjoined the enforcement of Proposition 8, an injunction which he then stayed.   Chief Judge Roberts' majority opinion in Perry describes district judge Walker's order as being broad: 

"After a 12-day bench trial, the District Court declared Proposition 8 uncon- stitutional, permanently enjoining the California officials named as defendants from enforcing the law, and “direct- ing the official defendants that all persons under their control or supervision” shall not enforce it. Perry v. Schwarzenegger, 704 F.Supp. 2d 921, 1004 (ND Cal. 2010).

The ACLU and others are advising that the district judge's order renders Prop 8 unconstitutional as to all of California.  The  docket entry in the Ninth Circuit simply states:

Received copy of Supreme Court opinion dated 06/26/2013. The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing. Supreme Court No: 12-144. [8682306] [10-16696, 11-16577].

One of the best discussions of this issue is by ConLawProf Marty Lederman over at SCOTUSblog. Lederman asks  "even if Judge Walker’s injunction should have been limited to the protection of the plaintiffs before him—so what?  That injunction nevertheless governs the case, and it will be operative, regardless of whether it should have been more tailored."    He concludes that Justice Kennedy, dissenting in Perry will be proven correct that “the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed.”

The second question is one that is being voiced less, but is worth considering: Why are there no opinions by Justices Sotomayor, Ginsburg, Kagan, and Breyer?  Justice Ginsburg, who made headlines with her "skim milk" comment during oral argument in Windsor, could have effectively written a concurring opinion that might have counter-balanced some of the arguments in Alito's separate dissenting opinion regarding the function of marriage. ConLawProf David Cohen over at FeministLawProfessors ConLawProf  argues that the lack of opinions matters:

By remaining silent, not only are the liberal Justices depriving us from learning their particular views, but they are depriving future litigants the opportunity to use their strong reasoning to further their cause.  After all, the logic in today’s concurring opinions often becomes the logic in tomorrow’s majority opinion.

It might be added that perhaps one of these Justices could have provided a rigorous equal protection analysis.

There are certainly more questions raised by Windsor and Perry, but these two are central.

RR
[image via]

June 28, 2013 in Courts and Judging, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Interpretation, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Teaching Tips, Theory | Permalink | Comments (1) | TrackBack (0)

Monday, April 15, 2013

Daily Read: Linda Sugin on the Constitutional Tax Avoidance of the Roberts Court

The Roberts Court majority is avoiding taxes: not the income taxes revealed by the returns due today, April 15, but the constitutional scrutiny that taxes deserve.

LsuginLaw Prof Linda Sugin (pictured left), in her article The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures, draft available on ssrn, analyzes two cases that are not typically paired. 

First, she considers National Federation of Independent Business v. Sebelius, in which, as she describes it, Justice Roberts' "newly muscular tax law saved Obamacare from near death at the hands of the Commerce Clause." 

Second, she examines Arizona Christian Schools v. Winn, in which, as dhe describes it, the majority   "adopted a novel judicial approach to targeted tax benefits" and denied standing in an Establishment Clause challenge.

Sugin argues that these two cases, taken together, "challenge the revenue-raising role of the tax law, and give it tremendous potential to overcome constitutional obstacles that legislatures face," including state legislatures.  She contends that the cases "introduce confusion into the law of taxation by incentivizing the adoption of more non-revenue policy in the tax law, and blurring the conceptual structure of taxation."  She claims that "these decisions undermine the important work on tax reform and fiscal responsibility that other branches of government are doing."  Ultimately, she argues that these decisions portend that "policies administered through the tax law" will be deemed constitutional "even where those same policies would be unconstitutional if administered as either direct regulation or appropriated spending."

Worth a read and not only on "tax day."

RR

April 15, 2013 in Commerce Clause, Current Affairs, Recent Cases, Religion, Scholarship, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Monday, March 25, 2013

Supreme Court Takes Another Affirmative Action Case: Michigan's Prop 2

Even as we await the United States Supreme Court's opinion on the constitutionality of a university's affirmative action plan in Fisher v. University of Texas argued October 10, it has become clear that Fisher will not be the Court's last affirmative action case.

Affirmative_Action_supreme_court_demonstration_2003Today, the Court granted a petition for certiorari in Schuette v. Coalition to Defend Affirmative Action to the Sixth Circuit's en banc decision in Coalition to Defend Affirmative Action v. Regents of the University of Michigan decided last November. Recall that the Sixth Circuit majority held Michigan's anti-affirmative action constitutional amendment, passed in 2006 as a ballot initiative Proposal 2, unconstitutional.

The en banc Sixth Circuit was seriously fractured, but none of the opinions considered the Court's affirmative action cases of Grutter and Gratz (or the pending case of Fisher).  Instead, the relevant doctrine was the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief?  This underlying problem is similar to some of the arguments in the Proposition 8 case - - - Hollingsworth v. Perry - - - to be argued before the Supreme Court tomorrow, March 26, and certainly resonates with the Ninth Circuit's reasoning in Perry finding that Prop 8 was unconstitutional.

In the case of Michigan's Prop 2, the Sixth Circuit majority found it troublesome that only as to racial classifications in university admissions would a person seeking to change policy have to amend the state constitution, as contrasted to other classifications that could be changed by various other means, including simply persuading an admissions committee. 

As to what the Court's grant of certiorari in Coalition to Save Affirmative Action might mean for Fisher, reading the "tea leaves" is difficult.  As we observed when the Sixth Circuit decided Coalition to Save Affirmative Action, a very broad approach in Fisher - - - such as a declaration that all racial affirmative action policies in education were per se unconstitutional - - - would seriously undermine the rationale of the Sixth Circuit opinion.  However, a grant of certiorari in Coalition to Save Affirmative Action does not mean that Fisher will be narrow or that it will uphold the University of Texas' affirmative action plan.

And one additional "wrinkle": Justice Kagan is recused in Coalition to Save Affirmative Action.

RR
[image Affirmative Action demonstration in 2003, via]

March 25, 2013 in Affirmative Action, Elections and Voting, Equal Protection, Federalism, Fourteenth Amendment, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 6, 2013

Ninth Circuit Grants Standing to Challenge California's Requirement for Resident Signature Gatherers for Ballot Qualification

California_MapCalifornia's Election Code, sections 8066 and 8451 require the persons who gather the signatures necessary to place a name on the ballot in an election to be residents of the political subdivision or district in which the voting is to occur.  California uses the term "circulators" for the person who gathers the signatures and the term "nomination paper" for the document with the signatures, but the general scheme is a familiar one.

Indeed, recall the controversy in January 2012 over a First Amendment challenge by Republican candidates for President to the Virginia election provision that mandated that the petition be circulated by a registered (or eligible) voter in Virginia and the circulator must sign the petition in the presence of a notary.   The Fourth Circuit rejected the challengers arguments on the basis of laches.  Part of the candidates' argument for waiting was that they did not have standing until later in the process.

And the standing concern is a serious one.  

But the Ninth Circuit's opinion in Libertarian Party of Los Angeles County v. Bowen today - - - reversing the district judge - - - held that a "concrete plan" to use circulators who do not live in the voting district, coupled with the clear intent of enforcement by California Secretary of State Bowen, is sufficient to confer standing.

In a footnote to this relatively brief opinion, the panel distinguished the Supreme Court’s February 26 decision in Clapper v. Amnesty International USA : "Unlike in Clapper, Plaintiffs’ fear of enforcement here is actual and well-founded and does not involve a 'highly attenuated chain of possibilities.' "

Thus, the question of whether states can impose residency requirements for those who gather signatures without violating the First Amendment is a live case or controversy in a California district court.

RR
[image via]


March 6, 2013 in Elections and Voting, First Amendment, Fourteenth Amendment, Opinion Analysis, Recent Cases, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, February 25, 2013

Sotomayor Focuses on Prosecutor's "Racially Charged" Remark

Writing in a "Statement" accompanying the denial of certiorari in Calhoun v. United States today, Justice Sotomayor (joined by Justice Breyer) sought to "dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark." 

480px-Sonia_Sotomayor_in_SCOTUS_robeDefendant Calhoun's intent to participate in a drug conspiracy was a central issue and the defendant took the stand.  As Sotomayor explains:

The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prose- cutor to move on. That is when the prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”

For Sotomayor, such prosecutorial argument threatens to violate the equal protection guarentee as well as the defendant's right to an impartial jury. She also castigated the government's original position on appeal that the prosecutor's argument was merely "impolitic," and agreed with a Fifth Circuit Judge who noted that the prosecutor's argument clearly "crossed the line."

But the unusual posture of the case - - - including issues preserved for appeal - - - meant that Sotomayor's Statement was a statement, and not a dissent from the denial of certiorari.  But a strong statement it certainly was:

I hope never to see a case like this again.

RR

February 25, 2013 in Criminal Procedure, Equal Protection, Fifth Amendment, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Thursday, January 24, 2013

Libel and the First Amendment in the Iowa Supreme Court

It's easy to see how writing and publishing a memoir centering on one's former spouse, especially if the theme is how "Satan (through my ex) set out to destroy my life," might lead to a defamation action in state court by the former spouse.  But as the Iowa Supreme Court demonstrated in its recent opinion in Bierman v. Weier, the entwinement of the First Amendment, the state constitution, and the tort issues are far from simple to resolve.

504px-Jan_van_Eyck_059The opinion has an excellent discussion of First Amendment Supreme Court precedent on defamation and an interesting application of last term's decision in United States v. Alvarez, the "Stolen Valor case." The defendants argued that Alvarez should be construed to invalidate libel per se presumptions because it recognized a First Amendment right to make "factually false statements."  As the court stated, however, the problem with this argument "is that both opinions making up the Alvarez majority specifically highlighted defamation as a traditional area where the law was constitutional because it did not punish statements merely because of their falsity."  The Iowa Supreme Court also disregarded the applicability of Citizens United to arguments invalidating libel per se as a matter of state law.

This was not merely a matter of state common law, however, for the Iowa state constitution specifically addresses the issue of libel in Article I, section 7:

Every person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech, or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury, and if it appears to the jury that the matter charged as libelous was true, and was published with good motives and for justifiable ends, the party shall be acquitted.

The Iowa Supreme Court emphasized that the language supported the continuance of libel per se, especially given the text that made persons "responsible for the abuse of that right."

The continued constitutionality of libel per se left open the legal status of Author Solutions, Inc. (ASI), the self-publishing venture named as a defendant for its role in producing Scott Weier's book.  The status of ASI as a media or nonmedia defendant was important under the state libel law that uses a "Gertz [v. Robert Welch] -inspired framework, which distinguishes media and nonmedia defendants and reserves libel per se for private plaintiffs and nonmedia defendants."   In assessing whether ASI was a media defendant, the Iowa Supreme Court found that it was, interestingly citing New York Times v. Sullivan in support of this rationale:

"It is true that Scott [Weier] paid ASI to publish his book, rather than the other way around. But this fact alone does not change the analysis. Both our precedents and the United States Supreme Court’s have accorded the same protection to media defendants when they publish advertisements as when they publish content they have paid for."

Given the heightened standard of libel per se, the majority found that there was no malice on the part of ASI and reversed the lower court's denial of ASI's motion for summary judgment.  Scott Weier was less successful: the Iowa Supreme Court affirmed the district court and the plaintiffs' claims of libel, false light, and intentional emotional distress will be proceeding to trial, barring a settlement.

RR
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January 24, 2013 in Books, First Amendment, Opinion Analysis, Recent Cases, Speech, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, January 7, 2013

Daily Read: Pam Karlan on the 2011 United States Supreme Court Term

Pamela Karlan's "Democracy and Disdain" is the Forward to Harvard Law Review's annual Supreme Court issue for the 2011 Term and is a compelling - - - indeed, necessary and delightful - - - read.  Karlan's central thesis, as the title aptly communicates, is that the Roberts' Court has little but disdain for the democratic process.  By "Roberts' Court," of course, she means the five Justices who usually form the majority, including Roberts, Scalia, Thomas, Alito, and Kennedy.  

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Professor Karlan (pictured) concludes that this disdain will ultimately bring the Court into disrepute, comparing the present state of affairs unfavorably with the Warren Court:

The Roberts Court’s narrow substantive reading of enumerated powers maps fairly closely onto the contemporary conservative political agenda. To the extent that the conservative agenda gains popular acceptance, the Court may garner acclaim as a guardian of constitutional values. But if the public rejects that agenda, or remains sharply divided, the Court risks being perceived as simply another partisan institution. The Court’s current status rests in substantial measure on its having been on the right side of history in Brown v. Board of Education. Only time will tell whether the Court will retain that status given the choices the Roberts Court is making.

Karlan is adept at comparing the present Court to previous ones, not only including the Warren Court.  Spoiler alert: When she quotes Justice Roberts, she might not be quoting the 2012 John Roberts but the 1936 Owen Roberts, a device she uses to especially good effect.  Also to good effect is her usage of other justices, colloquies in oral argument, the occasional poet, and theorist.  The writing is broad and engaging without being precious.  It makes her analysis of the cases even more trenchant, situated in larger themes and trends.

Of course, not all ConLawProfs will agree with Karlan's views of the Court, including one subsection entitled "Protecting Spenders and Suspecting Voters," and another "Suspecting Congress."    And Karlan's argument is hardly unique, as anyone who recalls Rehnquist Court scholarship, including the excellent 2001 article "Dissing Congress," by Ruth Colker and James J. Brudney can attest.  And it is especially noteworthy that  the Court did uphold the constitutionality of the Affordable Care Act in National Federation of Independent Business v. Sebelius, a case that Karlan extensively discusses and more interestingly, situates within the Term's other less notable decisions. 

But this is a must read article before beginning the new semester. 

And after that, read George Wills' Washington Post op-ed, Karlan's response, and responses in the Harvard Law Review Online Forum by Randy Barnett and Stephen Calabresi.

RR
[image of Pamela Karlan via]

January 7, 2013 in Courts and Judging, Due Process (Substantive), Elections and Voting, Fifteenth Amendment, First Amendment, Fourteenth Amendment, History, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Separation of Powers, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, January 4, 2013

Daily Read: The Story Behind The Ninth Circuit's Self-Abortion Opinion

In September, the Ninth Circuit rendered its opinion in McCormack v. Hiedeman regarding the constitutionality of Idaho's "unlawful abortion" statutes that makes it a felony for any woman to undergo an abortion in a manner not authorized by statute.  McCormack had been charged by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet.  The court held that imposing a criminal sanction on a woman poses an undue burden under Casey, but the decision was restricted to McCormack given the absence of class certification.

But who is Jennie Linn McCormack?  And how common is procuring abortion "medications" via the internet?

Tnr-cover_1231121Journalist Ada Calhoun's cover article in this month's The New Republic, "The Rise of DIY Abortions," paints a vivid portrait of Jennie Linn McCormack, as well as her attorney ("an avid fan of The Girl with the Dragon Tattoo books. He saw the character of dogged reporter Mikael Blomkvist as a good role model for a lawyer. . . ").  

Calhoun also contextualizes McCormack's situation:

Determining how many American women have had home abortions is exceedingly difficult: The Centers for Disease Control and Prevention does not track illegal abortions. There is no blood test for drugs like Cytotec, and so such an abortion is indistinguishable from a natural miscarriage, even to a doctor. However, the proliferation of online dispensers suggests a rising demand. There are thousands of websites selling Cytotec for as little as $45 to $75 (compared with $300 to $800 for a legal medicated abortion in a clinic). Some claim to offer the harder-to-come-by Mifeprex, but may in fact be peddling Cytotec, or aspirin, or nothing at all. (Possible sources for the drugs include Mexico, where Cytotec is available over the counter, or even the United States, since it’s also prescribed here as an ulcer medication.)

The question of how drugs like Mifeprex and Cytotec are sold and administered is emerging as the next major front in the abortion debate.

Calhoun's article is a must-read for anyone teaching, writing, or thinking about abortion and is sure to be discussed at the many conferences devoted to Roe v. Wade's 40th anniversary, such as this one at the NYC Bar.

RR

January 4, 2013 in Abortion, Current Affairs, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Recent Cases, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 4, 2012

Daily Read: Corporate Free Speech

Bezanson_randy_sqIn their article, Commercial Expression and Business Regulation in the Shadow of Citizens United and Sorrell, available in draft on ssrn, authors ConLawProf Randy Bezanson (pictured), William O'Hare, and Robert Miller ask "whether the system and market- based flexibility accorded government in its regulatory action will continue to be respected." 

In interrogating this question, one of their three case studies of regulation is off-label drug marketing, the subject of yesterday's divided Second Circuit opinion reversing a criminal conviction on the basis of the First Amendment, and an application of Sorrell v. IMS Health, Inc.  In their consideration of off-label drug advertising more generally, they write:

the apparent overbreadth of specific applications of a regulation will seem obviously unconstitutional without a perspective that recognizes a speech restriction as part of a broader system of similar speech regulations that, added together, protect the systematic and market justifications of government action. It may be obvious that sophisticated consumers of off-label drug treatments, or sophisticated investors in the new issue market for stock, don’t need the information or the waiting periods or the other regulatory steps that government may impose. But if those steps do help the market system by assuring equal and complete consumer information, even if at some inconvenience to a sophisticated few, there is justification for the looser scrutiny that the Supreme Court has historically accorded regulation of commercial speech.

Worth a read for anyone teaching or writing in the commercial speech area.

RR

December 4, 2012 in Current Affairs, First Amendment, Profiles in Con Law Teaching, Recent Cases, Scholarship, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, December 3, 2012

Second Circuit On First Amendment Right to Promote Drug for Off-Label Use Without Criminal Consequences

In a sharply divided and long overdue opinion in United States v. Caronia issued today, a panel of the Second Circuit reversed a conviction relying primarily on the Supreme Court's 2011 decision in Sorrell v. IMS Health, Inc.

The conviction, according to the jury verdict, was for "Conspiracy to introduce a misbranded drug into interstate commerce in violation of 21 U.S.C. §§ 331(a) and 333(a)(2)."  However, Judge Denny Chin, writing for the majority, emphasized that Caronia's statements - - - promoting the off-label use of the drug while he was as a pharmaceutical marketer - - - were the basis of the conviction: "Caronia was, in fact, prosecuted and convicted for promoting Xyrem off-label."  Thus, because the majority rejected the government's argument that the statements were (merely) evidence of intent, the conviction raised a First Amendment issue.  The panel then extensively discussed Sorrell, beginning with an explication of its two-step analysis:

First, the Court considered whether the government regulation restricting speech was content- and speaker-based. The Court held that it was; the regulation was therefore subject to heightened scrutiny and was "presumptively invalid."  Second, the Court considered whether the government had shown that the restriction on speech was consistent with the First Amendment under the applicable level of heightened scrutiny. The Court did not decide the level of heightened scrutiny to be applied, that is, strict, intermediate, or some other form of heightened scrutiny.

[citations omitted].  The panel concluded "that the government's construction of the FDCA's misbranding provisions imposes content- and speaker-based restrictions on speech subject to heightened scrutiny," and then that "the government cannot justify a criminal prohibition of off-label promotion even under Central Hudson's less rigorous intermediate test."  The majority seems especially troubled that the crime, at least as the court has constructed it,  is "speaker-based because it targets one kind of speaker -- pharmaceutical manufacturers -- while allowing others to speak without restriction." 

In a vigorous dissent, Judge Debra Ann Livingston stressed that speech acts are often evidence of intent and that "the majority calls into question the very foundations of our century-old system of drug regulation."  She provides a literary analogy to refute Caronia's argument that he "merely discussed “a perfectly lawful practice: the use of a lawful drug, Xyrem, for off-label purposes.” 

But the fact that a physician or a patient could legally use Xyrem for an off-label purpose is not enough to make out Caronia’s First Amendment claim. There might be no law forbidding the consumption of arsenic. But this would not endow Abby and Martha with a First Amendment right to offer arsenic-laced wine to lonely old bachelors with the intent that they drink it. See Arsenic and Old Lace (Warner Bros. Pictures 1944). And any statements Abby or Martha made suggesting their intent—even if all of the statements were truthful and not misleading—would not be barred from evidence by the First Amendment simply because arsenic might legally be consumed.

 

 

 

While Judge Chin's opinion could - - - taken to its logical conclusion - - - have a dramatic effect, it seems limited to the pharmaceutical arena.

RR

 

December 3, 2012 in First Amendment, Interpretation, Medical Decisions, Opinion Analysis, Recent Cases, Speech, Supreme Court (US) | Permalink | Comments (3) | TrackBack (0)

Thursday, November 29, 2012

Daily Read: Thirteenth Amendment Scholars Supporting Matthew Shepard & James Byrd, Jr. Hate Crimes Act

Did Congress have power pursuant to the Thirteenth Amendment to pass the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009

 

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President Barack Obama greets Louvon Harris, left, Betty Byrd Boatner, right, both sisters of James Byrd, Jr., and Judy Shepard, center, mother of Matthew Shepard, following his remarks at a reception commemorating the enactment of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act in the East Room of the White House, Oct. 28, 2009. (Official White House Photo by Pete Souza)

The question of the Act's constitutionality is before the Tenth Circuit in an appeal arising from the first prosecution under the Act.  In Hatch v. United States, the defendant challenges 18 U.S.C. § 249(a)(1), which provides:

 

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—

There seems to be little dispute that the three defendants admitted actions against the Native American victim, including branding the victim with a swatstika, fit within the terms of the statute.   But did the statute exceed Congress' power pursuant to the Thirteenth Amendment, or does the statute violate equal protection as guarenteed through the Fifth Amendment?

On the Thirteenth Amendment issue, ConLawProfs William M. Carter, Jr., Dawinder S. Sidhu, Alexander Tsesis, and Rebecca E. Zietlow, have filed an amicus brief, available on ssrn, argue that the Thirteenth Amendment's enforcement clause gives Congress broad powers.  They contend that the hate crime section should be analyzed under a defential rational basis standard, both because of its provenance in the Thirteenth Amendment and, perhaps most interestingly,  because the statute does not make a racial classification.

This is a terrific read of engaged scholarship as well as a providing a great grounding for a class exercise or student project.

RR

November 29, 2012 in Equal Protection, Fifth Amendment, Interpretation, Profiles in Con Law Teaching, Race, Recent Cases, Scholarship, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 27, 2012

Daily Read: Political Parties and Judging

It's something that is, perhaps increasingly, difficult to ignore: the political affiliations of federal judges. 

Adam Liptak's article in the NYT yesterday takes on the subject with a focus on the recent Michigan affirmative action decision from the en banc Sixth Circuit.  Liptak provides the breakdown: "Every one of the eight judges in the majority was nominated by a Democratic president. Every one of the seven judges in dissent was nominated by a Republican president."   This, he argues, is consistent with a forthcoming book, The Behavoir of Federal Judges, an empirical study authored by Lee Epstein, William Landes, and Richard Posner. 

388px-William_Wood,_Vanity_Fair,_1869-03-20Liptak thus rejects - - - at least implicitly - - - the practice of SCOTUSBlog's preeminent reporter and commentator Lyle Dennison whose "note to readers" in his discussion of the Michigan affirmative action case explained; that he would not include "references to the political party affiliation of the Presidents who named the judges to the bench" because "the use of such references invites the reader to draw such a conclusion about partisan influence, without proof."  Denniston, however, did include a caveat: he would provide that information" when "it is clearly demonstrated that the political source of a judge’s selection had a direct bearing upon how that judge voted — admittedly, a very difficult thing to prove."

Whether it is a question of causation, correlation, or coincidence is an issue often raised by law students in ConLaw classes, and one that ConLawProfs struggle to answer from various perspectives.

For Liptak, however, there is predictive certainty.  Referencing the affirmative action case of Fisher v. University of Texas argued in October, he writes:

The justices’ votes in the Texas case are as yet unknown. But here is a good bet: every vote to strike down the program will come from a justice appointed by a Republican president, and every vote to uphold it will come from a justice appointed by a Democratic one.

RR
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November 27, 2012 in Affirmative Action, Books, Courts and Judging, Current Affairs, Race, Recent Cases, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)