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)

Monday, January 27, 2014

Daily Read: Marsha Ternus on Being a (Former) Iowa Supreme Court Justice

In the National Law Journal, former Iowa Supreme Court Justice Marsha Ternus has published an insightful commentary entitled Politics on the Bench — a Judge's View of Partisanship at Play.

Recall that Justice Ternus was one of the justices in the unanimous Iowa Supreme Court's 2009 decision in Varnum v. Brien holding that the same-sex marriage ban was unconstitutional under the state constitution's equality provision.  (The opinion remains one of the most closely reasoned and certainly well-structured of the numerous same-sex decisions).  She and two colleagues were then defeated in a 2010 merit retention election in which same-sex marriage was made a contentious issue.
 
In this commentary, Ternus argues that despite her experience in 2010, she continues "to believe that judicial merit selection systems like Iowa's, incorporating a nonpartisan screening commission and gubernatorial appointment, offer the best defense against politicized courts."  She contends that her experience was an "exception" rather than "the rule" and made her even more aware of "the reality faced every election year by prospective judges forced to campaign on partisan platforms, as they do in many other states." She argues that "courts composed of jurists elected on partisan platforms have an inherent polarization that can hardly be escaped."
Ternus' argument is gracious and sage.  But she does not address the lack of diversity, gender and otherwise, now present in the Supreme Court of Iowa.
Image001
Current Justices of the Supreme Court of Iowa

January 27, 2014 in Courts and Judging, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Friday, January 24, 2014

Can the Virginia Attorney General (Not) Do That? Analysis of the Virginia AG's decision not to defend the state same-sex marriage ban

 The Office of the Attorney General of Virginia, representing Janet M. Rainey, in her official capacity as State Registrar of Vital Records, has filed a Notice of Change of Position (and Memorandum in Support)  in Bostick v. Rainey, a case challenging the constitutionality of Virginia's same-sex marriage ban in federal district court.  

Herring-aug2The Complaint in Bostick, filed in September 2013, challenges both the Virginia Statute § 20-45.2. prohibiting marriages between persons of the same-sex (adopted in 1975) and the constitutional amendment, Article I, §15A, prohibiting not only marriages but other forms of relationship recognition, passed by ballot initiative in 2006.

The change of the state's position by Mark Herring, the newly elected Attorney General (pictured right) may have been unexpected in some quarters, but it replicates the United States Attorney General's decision not to defend the constitutionality of the Defense of Marriage Act (DOMA) as well as California Attorney General Jerry Brown's decision not to defend the constitutionality of Proposition 8.   Recall that in the Proposition 8 trial, Perry v. Schwarzenneger, the constitutionality of Proposition 8 was defended by intervenors including protectmarriage.com, who the trial judge described as the “proponents” of Proposition 8.  When district judge Vaughn Walker ruled that Proposition 8 was unconstitutional, an appeal ensued, followed by questions about whether the "proponents" has standing to appeal.  Importantly, an attempt to obtain a writ of mandamus to mandate Governor Schwarzenegger appeal was unsuccessful.  And also importantly, the United States Supreme Court, in Hollingsworth v. Perry, decided that the "proponents" did not have standing to appeal, thus ultimately leaving the district judge's opinion valid.

The Proposition 8 litigation is thus an object lesson in the perils of the government not defending the constitutionality of the state laws at trial - - - it might insulate a district judge's finding of unconstitutionality from appeal.

On the other hand, the United States Supreme Court did find that there was standing to appeal in the Defense of Marriage case, United States v. Windsor, despite the fact that the United States was not actually defending the constitutionality of the DOMA statute.  The Court narrowly found that BLAG, the Bipartisan Legal Advisory Group of the House of Representatives who had taken up the defense of DOMA, at a substantial cost to taxpayers, had sufficient status to confer standing, or at least the case provided "sufficient adversarial presentation for the Court to decide to get to the merits."  (Recall that the Court appointed ConLawProf Vicki Jackson to brief and argue BLAG's standing).

Thus. should some parties in Virginia seek to defend the state statutory and constitutional scheme, they should seek to approximate BLAG rather than a more private proponent, even if one could find some proponent for the 1976 statute.

Barring any state laws to the contrary, the Virginia AG surely has the power to make a determination that the state action is unconstitutional and thus decline to defend it.  But it could prove a risky business when it comes to any party having standing on appeal should the district judge agree with the plaintiffs and with the state that the state scheme prohibiting same sex marriage is unconstitutional.

January 24, 2014 in Current Affairs, Due Process (Substantive), Federalism, Interpretation, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 21, 2014

Ninth Circuit Extends Batson's Equal Protection Doctrine Regarding Juror Exclusion to Sexual Orientation and Applies "Heightened" Scrutiny

In its opinion today in SmithKline Beecham Corporation (GSK) v. Abbott Laboratories, a unanimous panel of the Ninth Circuit extended the equal protection rule and analysis of Batson v. Kentucky (1986) regarding juror exclusions to those based on sexual orientation. 

Lady-justice-juryThe underlying dispute between the pharmaceutical companies involved HIV medications and during jury selection the attorneys for Abbott Laboratories "used its first peremptory strike against the only self-identified gay member of the venire."  The attorneys for GSK sought to initiate a Batson inquiry on the basis of sexual orientation.  The Batson analysis first requires a "prima facie" case of intentional discrimination, after which the striking party must offer a neutral reason for the strike, and then, third and last, the court makes a determination whether there has been an equal protection violation.

The district judge allowed the preemptory strike although said she would "reconsider her ruling if Abbott struck other gay men."  While the judge advised Abbott's attorney that “it might be the better part of valor” to reveal the basis for his strike, counsel "replied that he would rely on the grounds given by the judge and further explained, 'I don’t think any of the challenge applies. I have no idea whether he is gay or not.'"  Apparently he later "added that he could not have engaged in intentional discrimination because this was only his first strike." After a four week trial, the jury returned a "mixed verdict."

In the opinion authored by Judge Reinhardt, the Ninth Circuit held that there was a "prima facie" sufficient to have triggered the Batson inquiry, and using the record before it, then engaged in the second prong of the Batson analysis, finding  that Abbott's counsel did not provide a sufficient explanation. 

As to the third prong, the Ninth Circuit panel noted that generally attorneys may "exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to ‘rational basis’ review."  It then stated:  "Thus, if sexual orientation is subject to rational basis review, Abbott’s strike does not require reversal."

Judge Reinhardt's opinion for the panel concluded that sexual orientation receives "heightened scrutiny" under equal protection.  The opinion turned to "the Supreme Court’s most recent case on the relationship between equal protection and classifications based on sexual orientation": United States v. Windsor (2013),  holding that Windsor was "dispositive of the question of the appropriate level of scrutiny in this case," even as the Court's majority opinion in Windsor "did not expressly announce the level of scrutiny it applied to the equal protection claim at issue."   Judge Reinhardt correctly noted that the Court in Windsor did not apply a presumption of constitutionality or supply reasons for Congressional action in DOMA.

Windsor scrutiny “requires something more than traditional rational basis review.”  Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny.

Thus, the Ninth Circuit's previous precedent applying rational basis to sexual orientation classifications was no longer valid.  Applying this heightened scrutiny, the Ninth Circuit found that the peremptory challenge was unconstitutional:

permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation. Strikes based on preconceived notions of the identities, preferences, and biases of gays and lesbians reinforce and perpetuate these stereotypes.

In sum, the Ninth Circuit's extended Batson to sexual orientation classifications and used the term "heightened scrutiny" to comply with the doctrine that Batson did not apply to classifications that merited rational basis scrutiny. 

However, one might be reading too much into the opinion to conclude that the Ninth Circuit has ruled that sexual orientation classifications now merit heightened scrutiny akin to "intermediate scrutiny."  Indeed, the Ninth Circuit relies upon the United States Supreme Court's opinion in Windsor which it admits is less than clear about the level of scrutiny - - - and certainly much less clear than the Second Circuit's opinion in Windsor which determined and applied the intermediate level of equal protection scrutiny used in gender/sex classifications.

Instead, it seems that the Ninth Circuit read the "rational basis" exclusion from Batson to be the "mere" rationality test - - - often called the "anything goes" rational basis of Railway Express Agency v. New York (1949) (which the Ninth Circuit panel opinion did not cite) or Fed. Commc’n Comm’n v. Beach Commc’n, Inc.  (1993) (which the Ninth Circuit did cite and quote).   The "heightened scrutiny" that the Ninth Circuit finds - - - derived from Windsor - - - is akin to the "heightened rational basis" or "rational basis with bite" or "rational basis with teeth" that has become a common feature of equal protection doctrine for sexual orientation classifications.  While the Ninth Circuit opinion does not stress "animus," it does discuss Department of Agriculture v. Moreno (1973), including stating that the Ninth Circuit previously "acknowledged that Moreno applied “‘heightened’ scrutiny.”

Certainly, this is an important opinion: it extends Batson to sexual orientation classifications.  And it is also important to the litigation between two giant pharmaceutical corporations given that the case was remanded for a new trial.  However, it is not a landmark opinion that substantively changes (rather than clarifies or renames) the level of scrutiny for sexual orientation classifications in all equal protection cases.

[image via]

January 21, 2014 in Courts and Judging, Equal Protection, Fourteenth Amendment, Opinion Analysis, Sexual Orientation | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 14, 2014

Oklahoma District Judge Invalidates State's Prohibition of Same-Sex Marriage (But Stays Judgment)

In a lengthy opinion today in Bishop v. United States (Smith), Judge Terence Kern of the Northern District of Oklahoma found unconstitutional the state constitutional amendment, article 2, §35 that defines marriage as consisting "only of the union of one man and one woman," and further that no law "shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

The lawsuit, originally filed in 2004 soon after the state constitutional amendment, also challenged the federal DOMA, as well as other portions of the state "little DOMA" and includes several plaintiffs.  As to these challenges, the judge found a lack of standing.  However,  as to the definitional section of article 2, §35 (above), known as "Part A" of the Oklahoma Constitutional Amendment, the judge found that the "Bishop couple" had standing - - - and that the provision violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

Map_of_USA_highlighting_Oklahoma
As to the Equal Protection claim, the judge rejected the argument by Smith, the Oklahoma county clerk, that Baker v. Nelson (1972) was binding precedent.  More interestingly, the judge also rejected the argument that last Term's decision in Windsor v. United States, holding section 3 of the federal DOMA unconstitutional was determinative:  "Both parties argue that Windsor supports their position, and both are right." 

Judge Kern correctly observed:

The Windsor Court did not apply the familiar equal protection framework, which inquires as to the applicable level of scrutiny and then analyzes the law’s justifications. Instead, the Windsor Court based its conclusion on the law’s blatant improper purpose and animus. See id. at 2693. The Court reasoned that DOMA’s “unusual deviation” from the tradition of “accepting state definitions of marriage” was “strong evidence of a law having the purpose and effect of disapproval of the class.” Id. The Court concluded, based upon DOMA’s text and legislative history, that DOMA’s principal purpose “was to impose inequality.” Id. Thus, Windsor does not answer whether a state may prohibit same-sex marriage in the first instance. Nor does Windsor declare homosexuals a suspect class or discuss whether DOMA impacted a fundamental right, which would have provided this Court with a clear test for reviewing Part A [of the Oklahoma Constitutional Amendment].

The judge then applied the Tenth Circuit's framework for analyzing equal protection questions:

First, the Court asks “whether the challenged state action intentionally discriminates between groups of persons.”  Second, after an act of intentional discrimination is identified, the Court must ask “whether the state’s intentional decision to discriminate can be justified by reference to some upright government purpose.”

By examining the legislative actions - - - including a press release - - - the judge found that the exclusion of the defined class was not a "hidden or ulterior motive," but was "consistently communicated to Oklahoma citizens as a justification" for the amendment.  

For the next line of inquiry focusing on the justification for the discrimination, the judge rejected the argument that it was gender discrimination (relying on "common sense"), and concluded it could be best described as "sexual-orientation discrimination."  The judge applied the familiar "rationality" standard, but rejected the "morality" government interest originally proffered, as well as the "negative impact on marriage" interest.  While he did not use the label of "animus" for these interests, the import of the analysis is sympathetic to such a reading.

He similarly rejected the interests of "Encouraging Responsible Procreation/Steering Naturally Procreative Couples to Marriage," and "Promoting the “Optimal” Child-Rearing Environment,"  finding that while these interests might be legitimate, they were not being rationally served by the means chosen of prohibiting same-sex couples from marriage.  

The judge concluded:

The Court permanently enjoins enforcement of Part A against same-sex couples seeking a marriage license. In accordance with the U.S. Supreme Court’s issuance of a stay in a nearly identical case on appeal from the District Court of Utah to the Tenth Circuit Court of Appeals, see Herbert v. Kitchen, U.S. Supreme Court Order in Pending Case 13A687 (Jan. 6, 2014), the Court stays execution of this injunction pending the final disposition of any appeal to the Tenth Circuit Court of Appeals.

Thus, same-sex marriages will not occur in Oklahoma as they did in Utah while the state government sought stays.  Instead, the Tenth Circuit's expedited appeal in Herbert v. Kitchen is now also determinative of Oklahoma.

January 14, 2014 in Courts and Judging, Equal Protection, Family, Federalism, Gender, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Monday, January 6, 2014

US Supreme Court Stays Utah's Same-Sex Marriage Decision

The Court today issued a stay in Herbert v. Kitchen of Judge Shelby's decision that Utah's ban on same-sex marriage is unconstititional.

Here's the entire text:

The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.

Note that Justice Sotomayor as the Circuit Justice referred the decision to the full Court, an expected but not necessarily routine process.

The Tenth Circuit itself had denied the properly filed emergency motion for stay, concluding it was not warranted and specifically noting that of the four factors governing a stay pending appeal, two - - - the likelihood of success on appeal and the threat of irreparable harm if the stay is not granted - - - are "most critical, and they require more than a mere possibility of success and irreparable harm, respectively." 

The Tenth Circuit also directed expedited review.

The United States Supreme Court's stay thus halts the entering into of same-sex marriages which have been proceeding since the District Judge's order on December 20, but has no effect on the legality of the same-sex marriages entered into during that period. 

January 6, 2014 in Cases and Case Materials, Courts and Judging, Family, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, January 2, 2014

Scholarship Matters: Steve Sanders, The Right to "Stay Married," and Obergefell Opinion

In his opinion granting a final injunction in Obergefell v. Kasich, federal Judge Timothy Black addressed a particular enforcement of Ohio's limitation of marriage to opposite sex couples.   He also cited and relied upon an interesting conceptualization put forth by Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 Mich. L. Rev. 1421 (2011), available on ssrn. 

SandersAs the title indicates, Sanders argues that an individual who legally marries in his or her state of domicile, then migrates to another state, has a significant liberty interest under the 14th Amendment’s Due Process Clause in the ongoing existence of the marriage, as conceptually and doctrinally distinguishable from the constitutional “right to marry.”

Recall that the facts in Obergefell are especially sympathetic: one of the partners was a hospice patient and the relief requested regarded the martial status and surviving spouse to be recorded on the death certificate.  As NPR reported, the couple "chartered a special medical jet to Maryland, where gay marriage is legal, and held a simple ceremony on the runway.   And recall also that Judge Black's preliminary injunction opinion last July was one of the first after the Court decided United States v. Windsor, declaring section 3 of DOMA unconstitutional, and used Justice Scalia's dissent as part of the rationale for expanding Windsor.

Although Judge Black's preliminary injunction opinion certainly considered the effect of the out-of-state marriage, in the permanent injunction opinion, Judge Black constitutionalizes this conception:

In situations like those of Plaintiffs, however, where same-sex couples legally marry outside of Ohio and then reside in Ohio, a different right than the fundamental right to marry is also implicated: here, the constitutional due process right at issue is not the right to marry, but, instead, the right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections.

The footnote to this passage credits Steve Sanders article:

The concept of the right to remain married as a liberty interest protected by the Due Process Clause is eloquently advanced by Professor Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 MICH. L. REV. 1421 (2011). This judge acknowledges significant reliance upon Professor Sanders’s learned (and more extended) analysis of the fundamental right to remain married.

In the text of the opinion, Judge Black then quotes Sanders' article as stating, "In identifying the right to remain married as fundamental, Professor Sanders points out that the “[l]aw favors stability in legal relationships, vindication of justified expectations, and preventing casual evasion of legal duties and responsibilities.”

There is much talk about whether and when legal scholarship matters.  In our new "Scholarship Matters" series, we'll continue to note incidents of scholarly influence on legal doctrine.  

January 2, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Family, Fourteenth Amendment, Interpretation, Opinion Analysis, Scholarship, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Monday, December 23, 2013

Ohio Federal Judge Issues Permanent Injunction in Ohio Same-Sex Marriage Case

In an opinion today in Obergefell v. Kasich, federal Judge Timothy Black (pictured) Timothy_Black_District_Judgeof the Southern District of Ohio issued a permanent injunction against a particular enforcement of Ohio's limitation of marriage to opposite sex couples.

Recall that in July, less than a month after the United States Supreme Court's decision in United States v. Windsor declaring DOMA unconstitutional, Judge Black enjoined Ohio's DOMA-type provisions (both statutory and in the state constitution) involving the recognition of a marriage that occurred out of state in an especially sympathetic situation involving a dying person.

In today's opinion, Judge Black - - - as he did in his previous opinion and as Judge Robert Shelby did in his opinion declaring Utah's ban on same-sex marriage unconstitutional - - - used Justice Scalia's dissent in Windsor as support:

In a vigorous dissent to the Windsor ruling, Justice Scalia predicted that the question whether states could refuse to recognize other states’ same-sex marriages would come quickly, and that the majority’s opinion spelled defeat for any state’s refusal to recognize same-sex marriages authorized by a co-equal state. As Justice Scalia predicted: “no one should be fooled [by this decision] ... the majority arms well any challenger to a state law restricting marriage to its traditional definition ... it’s just a matter of listening and waiting for the other shoe [to drop].” Windsor, 133 S. Ct. at 2710 (Scalia, J., dissenting).

The challenge before Judge Black is an as-applied-one relating to a specific couple, a death certificate, and an out of state marriage.

On the due process challenge, Judge Black concluded that "Ohio’s refusal to recognize same-sex marriages performed in other states violates the substantive due process rights of the parties to those marriages because it deprives them of their significant liberty interest in remaining married absent a sufficient articulated state interest for doing so or any due process procedural protection whatsoever."

On the equal protection challenge, Judge Black used a Carolene-type analysis to conclude that sexual orientation classifications merited heightened scrutiny.  However, he also decided that the Ohio marriage ban failed to satisfy even rational basis, both because animus was not a legitimate interest and because the non-animus legitimate interests asserted had no rational connection to Ohio's marriage recognition ban of same-sex couples. 

Although the final injunction is limited to this particular couple and relates to the death of one of the partners, its reasoning could undoubtedly apply in a facial challenge.

 

December 23, 2013 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Opinion Analysis, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, December 20, 2013

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

In his  opinion in Kitchen v. Herbert, federal district judge Robert Shelby held

that Utah’s prohibition on same- sex marriage conflicts with the United States Constitution’s [Fourteenth Amendment] guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.

Visiting_utahNotably, Utah has both a state statute and state constitutional amendment defining marriage as limited to "a man and a woman." 

The judge interestingly relied upon Justice Scalia's dissenting opinion in last term's decision in United States v. Windsor, which held §3 of DOMA unconstitutional:

The Constitution’s protection of the individual rights of gay and lesbian citizens is equally dispositive whether this protection requires a court to respect a state law, as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here. In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare . . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same- sex couples marital status.

133 S. Ct. at 2709 (citations and internal quotation marks omitted). The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.

Perhaps most controversially, Judge Shelby determines that marriage is a fundamental right and that restrictions on marriage merit strict scrutiny.  He further finds that there is no compelling governmental interest justifying the same-sex marriage restriction, unlike, for example, a regulation of the age at which a person may be married which is supported by the compelling state interest of "protecting children against abuse and coercion."

Judge Shelby's opinion on equal protection grounds is much less controversial, and perhaps even conservative.  Judge Shelby rejects the arguments - - - or at least the need for the arguments - - - regarding any sort of heightened scrutiny and resolves the case on rational basis review.  This rejection includes the arguments centering on animus as a non-legitimate state interest.  Instead, he concludes that the legitimate government interests that Utah cites are not rationally related to Utah’s prohibition of same-sex marriage.  These interests include the by now familiar ones of "responsible procreation," "optimal child-rearing,"  "proceeding with caution," and "preserving the traditional definition of marriage."

He ends with an extended analogy to Loving v. Virginia,  or more specifically, Virginia's arguments in the landmark case ruling the state's anti-miscengation law unconstitutional.  And after clearing declaring sections 30-1-2 and 30-1-4.1 of the Utah Code and Article I, § 29 of the Utah Constitution unconstitutional under the Fourteenth Amendment, enjoins their enforcement.

 

December 20, 2013 in Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Uganda Parliament Passes Anti-Homosexuality Bill - - - and Anti Pornography Bill

The anti-homosexuality bill has been before the Uganda Parliament for several years.  For background - - - including discussions of the links between the bill and US evangelicals- - - both Jeff Sharlett's 2010 Harper's Magazine article  Straight Man’s Burden: The American roots of Uganda’s anti-gay persecutions  and the documentary film God Loves Uganda   are worth consideration. 

 

The original "Anti Homosexuality Bill" Bill 18 2009, seems to have been amended by various motions, according to Parliament Watch (Uganda).  These amendments include:

The death penalty was removed from the Bill during the debate, and the death penalty was replaced with life imprisonment.

  • Clause 14 Failure to disclose the offense was deleted because the clause will be too hard to implement
  • Clause 12 was amended,a new clause inserted that sentences any person or institution that conducts gay marriage to 7yrs and licence canceled
  • Clause 9(b) the words"either in Uganda or elsewhere"or" appearing at the end of the end of the sub- clauses 1(a) (b)were deleted
  • Clause 9 was amended by deleting the words "etc " in the head note, because it makes the head note appear vague
  • Clause 8 Conspiracy to engage in homosexuality, was deleted because it is provided for under clause 13
  • Clause 7 : Aiding and abettting Homosexuality was deleted, because it provided for under clause 13

An official copy of the bill is not yet available.  It must be presented to the President of Uganda for assent.

Additionally, yesterday the Uganda Parliament passed The Anti Pornography Bill creating the offense of pornography.  As defined, it includes "any indecent act or behavior tending to corrupt morals."

Should there be Presidential assent and the bills become law, there are vows to challenge the constitutionality of both laws in the courts. 

December 20, 2013 in Comparative Constitutionalism, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Thursday, December 19, 2013

New Mexico Supreme Court Declares Same-Sex Marriage Cannot Constitutionally be Barred

In its unanimous opinion in Griego v. Oliver, the New Mexico Supreme Court has declared that the state must recognize same sex marriages.  The court found that

barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution. We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.

Justices
Justices of the New Mexico Supreme Court: 

From left to right: Richard C. Bosson; Charles W. Daniels; Chief Justice Petra Jimenez Maes (seated in middle);  Barbara J. Vigil;  Edward L. Chavez (author of opinion).     


Interestingly, the court concluded that any prohibition of same-sex marriage raised a classification based on sexual orientation (and not sex), although its rationale raised the specter of the kind of formal equality at issue in Plessy v. Ferguson:

We do not agree that the marriage statutes at issue create a classification based on sex. Plaintiffs have conflated sex and sexual orientation. The distinction between same- gender and opposite-gender couples in the challenged legislation does not result in the unequal treatment of men and women. On the contrary, persons of either gender are treated equally in that they are each permitted to marry only a person of the opposite gender. The classification at issue is more properly analyzed as differential treatment based upon a person’s sexual orientation.

Nevertheless, the court found that the appropriate level of scrutiny was intermediate:

 because the LGBT community is a discrete group that has been subjected to a history of purposeful discrimination, and it has not had sufficient political strength to protect itself from such discrimination. . . .  the class adversely affected by the legislation does not need to be “completely politically powerless, but must be limited in its political power or ability to advocate within the political system.”  Nor does intermediate scrutiny require the same level of extraordinary protection from the majoritarian political process that strict scrutiny demands. It is appropriate for our courts to apply intermediate scrutiny, “even though the darkest period of discrimination may have passed for a historically maligned group.” 

The court notes that its "decision to apply intermediate scrutiny is consistent with many jurisdictions which have considered the issue," citing the Second Circuit in Windsor, as well as the same-sex marriage cases from Iowa and Connecticut.

The court found that the same-sex marriage ban did not survive intermediate scrutiny.  It considered three  governmental interests advanced for prohibiting same-gender couples from marrying in the State of New Mexico:

  • promoting responsible procreation
  • responsible child-rearing
  • preventing the deinstitutionalization of marriage

As to the last interest, the court noted that the defendants conceded there was no evidence that same-sex marriages would result in the deinstitutionalization of marriage, and the court implied this interest was "intended to inject into the analysis moral disapprobation of homosexual activity and tradition" and flatly rejected it. 

As to procreation and child-rearing, the court rejected these interests as the governmental interests underlying New Mexico's marriage laws: "It is the marriage partners’ exclusive and permanent commitment to one another and the State’s interest in their stable relationship that are indispensable requisites of a civil marriage."  But the court also found that neither interest would be substantially served by the prohibition of mariage to same-sex partners.

Thus, by a relatively brief opinion (approximately 30 pages) the New Mexico Supreme Court has unanimously ruled that same-sex marriages must be allowed in the state.  Because the decision rests on the state constitution, it is not subject to review by the United States Supreme Court and   New Mexico becomes the 17th state to allow same-sex marriages on the same terms as other marriages.

 

December 19, 2013 in Courts and Judging, Current Affairs, Equal Protection, Family, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 11, 2013

Australia High Court Invalidates Capital Territory's Marriage Equality Act as Unconstitutional

The Australian Capital Territory (ACT) - - - akin to Washington, D.C. for those familiar with the United States - - - passed a "marriage equality act" allowing for same-sex marriages.  Australia's High Court has declared the ACT's marriage act invalid in The Commonwealth of Australia v. The Australian Capital Territory, [2013] HCA 55. 

Main
Here's
the Court's "judgement summary":

Today the High Court decided unanimously that the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, cannot operate concurrently with the federal Marriage Act 1961.  The Court held that the federal Parliament has power under the Australian Constitution to legislate with respect to same sex marriage, and that under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law is a matter for the federal Parliament.

The Court held that "marriage" in s 51(xxi) of the Constitution refers to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.  "Marriage" in s 51(xxi) includes a marriage between persons of the same sex.

The Marriage Act does not now provide for the formation or recognition of marriage between same sex couples.  The Marriage Act provides that a marriage can be solemnised in Australia only between a man and a woman and that a union solemnised in a foreign country between a same sex couple must not be recognised as a marriage in Australia.  That Act is a comprehensive and exhaustive statement of the law of marriage.  

The Court held that the object of the ACT Act is to provide for marriage equality for same sex couples and not for some form of legally recognised relationship which is relevantly different from the relationship of marriage which federal law provides for and recognises.  Accordingly, the ACT Act cannot operate concurrently with the federal Act.

Because the ACT Act does not validly provide for the formation of same sex marriages, its provisions about the rights of parties to such marriages and the dissolution of such marriages cannot have separate operation and are also of no effect.

The Court held that the whole of the ACT Act is of no effect.

 The Court's unanimous opinion is mostly concerned with whether the ACT marriage act and the federal marriage act are inconsistent.  The constitutional issues lurk in the background: Australia's constitution gives the federal government power over marriage.  As the opinion states:

Section 51(xxi) of the Constitution gives the federal Parliament power to make laws with respect to "marriage". Section 51(xxii) gives the Parliament legislative power with respect to "divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants". Both powers were included in the Constitution to avoid what the framers saw as a great defect in the United States Constitution. The object of the powers was to enable the federal Parliament to provide uniform laws governing marriage and divorce.

Once the inconsistency is determined - - - and there was an argument that the laws could be interpreted as not inconsistent, but this failed - - - then the federal law must prevail.

As the opinion states, "Under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law (as a majority of the Territory Legislative Assembly decided) is a matter for the federal Parliament."

 

December 11, 2013 in Comparative Constitutionalism, Current Affairs, Family, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Supreme Court of India Upholds Constitutionality of Criminalization of Sodomy

In its long-awaited opinion in Koushal v. NAZ Foundation, the Supreme Court of India has reversed the 2009 decision of the Delhi High Court that §377 of the Indian Penal Code was unconstitutional under the India Constitution and upheld India's sodomy law as constitutional.

Thumb-9

The Supreme Court decision noted that India's sodomy law was pre-constitutional - - - and derived from British rule - - - and also that the Court certainly had the power to declare the law unconstitutional as inconsistent with several provisions of the India Constitution, including

  • Article 13 (Laws inconsistent with or in derogation of the fundamental rights)
  • Article 14 (Equality before law)
  • Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth)
  • Article 19 (Protection of certain rights regarding freedom of speech etc.)
  • Article 21 (Protection of life and personal liberty)

Nevertheless, the Court stated that there is a presumption of constitutionality given the "importance of separation of powers and out of a sense of deference to the value of democracy that parliamentary acts embody."  

The Court's 98 page opinion authored by Justice Singhvi (who is interestingly scheduled to retire tomorrow, the day after the opinion was rendered), and without a dissenting opinion, criticizes the Dehli Court's reliance on non-national sources:

 In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.

(para 52).

For United States scholars, such concern for nationalism certainly echoes the dissenting opinion in Lawrence v. Texas, in which the United States Supreme Court held unconstitutional a state law criminalizing sodomy.  Yet in the India context, the fact that its constitutionalism is linked to British rule as well as the fact that the sodomy law is a product of colonialism (and is a law that the colonial power has since repudiated as former Australian High Court Judge Michael Kirby has analyzed as England's "least lovely" export) are distinguishing features.

Certainly, however, the problematizing of judicial review in the context of sexuality occurs in the United States cases as well as those from South Africa, an issue extensively discussed here.

And certainly, advocacy on behalf of "the so-called rights of LGBT persons" will be moving to India's Parliament.

[image of Supreme Court of India via]

December 11, 2013 in Comparative Constitutionalism, Courts and Judging, Fundamental Rights, Opinion Analysis, Privacy, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Saturday, December 7, 2013

Religious Right Not To Bake a Cake for a Same-Sex Wedding Rejected by ALJ

Wedding-blue-fond-bows-273x300In Craig and Mullins v. Masterpiece Cakeshop, Inc., the subject is not the ACA ("Obamacare") as in the cases recently granted certiorari by the United States Supreme Court, or even a UK hotel or wedding photographs, both of which we discussed here, but a cake.  But all these cases raise a similar question: can a secular for-profit corporation, or its owners, be exempted from a law by reason of a religious belief? 

The 14 page opinion  of the Administrative Law Judge (ALJ) in Masterpiece Cakeshop firmly rejects the arguments of the Cakeshop, reasoning that to accept its position would be to "allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage."  The ALJ was not persuaded by the fact that Colorado, where the cakeshop is located, does not recognize same-sex weddings, because the cakeshop owner admitted he would feel similarly if it were a same-sex commitment ceremony or civil union, neither of which is forbidden by state law.  Indeed, nothing compels the cakeshop or its owner "to recognize the legality of a same-sex wedding or to endorse such weddings," only, like "other actors in the marketplace serve same-sex couples in exactly the same way they would serve heterosexual ones."

The ALJ rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of  "same-sex and heterosexual couples equally is the equivalent of forcing"  adherence to “an ideological point of view.”  The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'"

As to the free exercise claim, the ALJ noted that the regulation at issue distinctly regulated conduct rather than belief.  The ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test.  The ALJ also rejected the argument "because the public accommodation law not only restricts their free exercise of religion, but also restricts their freedom of speech and amounts to an unconstitutional “taking” of their property without just compensation in violation of the Fifth and Fourteenth Amendments"  a hybrid right meriting strict scrutiny was involved.  For the ALJ, the "mere incantation" of other constitutional rights does not a hybrid claim create.

The remedy was a cease and desist order rather than damages. 

[image: one of the cakes advertised on the Masterpiece Cakeshop website]

 

 

December 7, 2013 in First Amendment, Food and Drink, Free Exercise Clause, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, November 28, 2013

UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?

Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple? Does it make any difference that he couple have entered into a civil partnership?

This is essentially the question presented in the UK Supreme Court's opinion in Bull v. Hall involving the Chymorvah Hotel in Cornwall, pictured below.

Chymorvah House

The main opinion, authored by the twelve justice Court's only woman member, Lady Hale, affirms the lower court's finding that the same-sex couple's equality claims must prevail.  While the decision is unanimous, some justices wrote separately because of differing on the rationale, including whether the discrimination should be deemed direct or indirect.  These differences resulted from highlighting sexual orientation or highlighting marital status, with the added wrinkle of civil partnership being equivalent to marriage.

But clearly, the Court held, there was discrimination.  And further, the Court held, that discrimination cannot be justified.  The Court construed the statutory frameworks prohibiting discrimination based on both sexual orientation and religious belief, and then turned to article 9 of the European Convention on Human Rights, which guarantees the ability to manifest religious beliefs in “worship, teaching, practice and observance."  But Article 9 also provides:

Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

This "rights of others" qualification is key to the Lady Hale's analysis, as these rights  include rights under "ordinary law," including UK's regulatory framework that prohibits discrimination.

But, as Lady Hale makes clear, it is not a matter of sexual orientation discrimination trumping religious discrimination.  Instead:

If Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today.

While the UK Supreme Court did cite cases from other jurisdictions, it sometimes noted that they occurred in a "different constitutional context."  

In the United States, the constitutional context pits First Amendment rights of free exercise of religion against Equal Protection rights based on sexual orientation.  When the sexual orientation rights of equality have been statutory, the United States Supreme Court has clearly held that the First Amendment interests prevail, as in Boy Scouts of America v. Dale (2000) and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995).  However, with the constitutional recognition afforded same-sex marriage last term in United States v. Windsor under the equal protection component of the Fifth Amendment in the challenge to DOMA (Defense of Marriage Act), the legal landscape has altered.  

Thus, it may be that the US Supreme Court will soon be confronting an issue quite similar to the one that the UK Supreme Court in Bull v. Hall.  One possibility is Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer and in which Elane Photography has filed a petition for writ of certiorari.

Interestingly, the petition relies upon the compelled speech doctrine, arguing that requiring Elane Photography, a wedding photographer to photograph a same-sex wedding would be to require her to "create expressive images" that conveyed messages that conflict with her religious beliefs and therefore violates the First Amendment doctrine of compelled speech.  The petition heavily relies upon Wooley v. Maynard (19977) the New Hampshire "leave free or die" license plate case. As Lyle Denniston notes, the case "does not ask the Court to rule on any right of gays and lesbians to marry" and NM presently does not either prohibit or allow same-sex marriage. 

Given the US Supreme Court's highly discretionary grant of certiorari and the lack of a developed conflict in the circuits on this issue, it seems more likely than not that the US Supreme Court will refuse to hear Elane Photography.  But given the probabilities of recurrence of the issue, the US Supreme Court will most likely be confronting this issue sometime soon.

November 28, 2013 in Cases and Case Materials, Comparative Constitutionalism, Equal Protection, Family, Gender, Opinion Analysis, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)

Saturday, November 9, 2013

Federal Judge Upholds New Jersey's Prohibition of Sexual Conversion Therapy

Federal district judge Freda Wolfson has upheld the constitutionality of  New Jersey A3371 banning "sexual orientation change efforts" (SOCE), also known as sexual conversion therapy, on minors in her extensive opinion in King v. Christie. 

Brain painting

Recall that Chris Christie - - - now the recently re-elected Governor of New Jersey - - - signed the bill into law last August, accompanied by a signing statement, and that the plaintiffs, including Tara King, a licensed professional counselor, as well as National Association for Research and Therapy of Homosexuality (“NARTH”) and American Association of Christian Counselors (“AACC”), argued that the statute violates their First Amendment rights of free speech, rights of their clients to "receive information," and free exercise of religion, as well as clients' parental due process rights under the Fourteenth Amendment, in addition to concomitant rights under the New Jersey state constitution.

The district judge found that the First Amendment challenges raised by the plaintiffs were the most serious ones, but also found that the statute restricts neither speech nor religious expression,  and that the statute survived rational basis scrutiny.

Regarding speech, Judge Wolfson concluded that on its face, the statute plainly regulates conduct, quoting the statutory language:

  “shall not engage in sexual orientation change efforts,” and further defines “‘sexual orientation change efforts” as “the practice of seeking to change a person’s sexual orientation.”

(emphasis in opinion).  She extensively discussed the Ninth Circuit's opinion in Pickup v. Brown, upholding a smiliar California statute prohibiting SOCE.  She briefly distinguished the federal district judge's opinion in Wollschlaeger v. Farmer declaring unconstitutional Florida's prohibition of physicians asking patients about gun ownership, noting that unlike the Florida law, the NJ statute "does not seek to regulate the conveying of information, only the application of a particular therapeutic method." She also confronted the implications of the plaintiffs' arguments:

there is a more fundamental problem with Plaintiffs’ argument, because taken to its logical end, it would mean that any regulation of professional counseling necessarily implicates fundamental First Amendment free speech rights, and therefore would need to withstand heightened scrutiny to be permissible. Such a result runs counter to the longstanding principle that a state generally may enact laws rationally regulating professionals, including those providing medicine and mental health services.

She likewise rejected the argument that there was sufficient expressive conduct to merit an analysis under the intermediate scrutiny standard of O'Brien, finding instead that rational basis was the appropriate standard and switching to a due process analysis, having "rejected Plaintiffs' First Amendment free speech challenge."  (footnote 22).  Not surprisingly, she finds this standard easily satisfied.  Relatedly, she easily concludes that the challenge to the term "sexual orientation" as vague and the challenge to the statute as overbroad are both without merit.

As to the free exercise of religion challenge, Judge Wolfson concludes that the statute is a neutral one of general applicability and rejects the argument that the statute's exceptions create a disproportionate impact on religious expression.  Again, she concludes that rational basis applies and for the same rationales discussed in the free speech analysis, the statute easily satisfies the standard.

In other matters, the judge found that the plaintiffs did not have sufficient Article III standing to raise the injuries to their minor clients and their parents.  On the other hand, the judge granted intervernor status to Garden State Equality.

The judge's opinion is a well reasoned one, and is certainly buoyed by the Ninth Circuit's similar conclusion. 

The plaintiffs filed a Notice of Appeal  immediately, so the matter is already on its way to the Third Circuit.

[image: Diagram of the Brain circa 1300 via]

November 9, 2013 in Due Process (Substantive), Family, First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Religion, Sexual Orientation, Speech, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 22, 2013

Georgia Supreme Court Upholds Constitutionality of Solicitation for Sodomy Statute - As "Narrowly Construed"

The Supreme Court of Georgia has upheld the constitutionality of the state statute criminalizing the solicitation of sodomy, even as it narrowly construed it, and even as it reversed the conviction based upon insufficiency of the evidence.

HunsteinIn its 12 page opinion in Watson v. State, Justice Carol Hunstein (pictured right) writing for a unanimous court, reaffirmed two of the court's previous decisions:

  • Powell v. State (1998), limiting the construction of the sodomy statute pursuant to the "fundamental privacy rights under the Georgia Constitution" and
  • Howard v. State (2000), upholding the sodomy solicitation statute against a free speech challenge by  narrowly construing "the solitication of sodomy statute to only punish speech soliciting sodomy that is not protected by the Georgia Constitution's right to privacy."

 Thus, the rule the court articulates is that

an individual violates the solicitation of sodomy statute if he (1) solicits another individual (2) to perform or submit to a sexual act involving the sex organs of one and the mouth or anus of the other and (3) such sexual act is to be performed (a) in public; (b) in exchange for money or anything of commercial value; (c) by force; or (d) by or with an individual who is incapable of giving legal consent to sexual activity.

Under this redefined "scope of the statute," the court then finds that Watson's actions did not satisfy any of the possibilities required by the third element: it was not to take place in public, it was not commercial, was not by force (although Watson was a police officer) and was not to a person incapable of giving consent (although solicited person was 17, the age of consent in the state is 16).  In addition to reversing the conviction for solicitation of sodomy, the court reversed the conviction for violation of oath of office (of a police officer) that rested on the solicitation conviction.

While the Georgia Supreme Court's opinion is correct, redrafting a statute that remains "on the books" for prosecutors, defense counsel, and perhaps even judges who are less than diligent can result in a denial of justice.

The better course would have been to declare the solicitation of sodomy statute unconstitutional, requiring the legislature to do its job and pass a constitutional statute.  This was the option followed by the New York Court of Appeals - - - New York's highest court - - - when presented by a similar issue in 1983.  Having previously declared the state's sodomy statute unconstitutional in People v. Onofre (1980),  when the court was presented with a challenge to a prosecution under the solicitation of sodomy statute, the court in People v. Uplinger stated:

The object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy. Inasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose. This statute, therefore, suffers the same deficiencies as did the consensual sodomy statute.

The United States Supreme Court granted certiorari in Uplinger, and then dismissed certiorari as improvidently granted, in part because of the intertwining of state and federal constitutional issues and in part because there was not a challenge to the underlying decision that held sodomy unconstitutional, six years before Bowers v. Hardwick, the case in which the United States Supreme Court upheld Georgia's sodomy statute.

October 22, 2013 in Criminal Procedure, Due Process (Substantive), Opinion Analysis, Sexual Orientation, Sexuality, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, October 18, 2013

New Jersey Supreme Court Refuses to Grant Stay in Same-Sex Marriage Case

The New Jersey Supreme Court today, in its unanimous opinion in Garden State Equality v. Dow, denied a stay of a trial judge's order that same-sex marriages be allowed to begin in New Jersey on October 21.  The trial judge's order was  supported by an extensive opinion we discussed here.  Essentially, the trial judge considered the NJ Supreme Court's previous ruling in Lewis v. Harris (2006), that led to civil unions, and reasoned that by declaring section 3 of DOMA unconstitutional, the United States Supreme Court in in Windsor v. United States  had altered the legal landscape:  NJ civil unions were now "unequal" because they would not be recognized by the federal government while marriages would be.

 

Justices
Justices of the NJ Supreme Court

Interestingly, the State argued to the New Jersey Supreme Court that the federal government might - - - would? - - - recognize civil unions and thus the constitutional question remained unsettled.  The NJ Supreme Court rightly rejected this contention as not based upon the language of Windsor or the realities of the manner in which the federal government was implementing Windsor.  Additionally, the NJ Supreme Court rejected as inapplicable the State's argument that a statute is presumed constitutional, noting that the trial judge's order does not declare the civil union unonstitutional and that civil unions would still be available.

 

Having found that Garden State Equality was likely to prevail on the merits - - - a sure sign that the NJ Supreme court would so hold - - - the NJ Supreme Court considered the other equitable considerations regarding a stay, and found that none supported a stay.

Thus, in a unanimous 20 page opinion, the NJ Supreme Court has given a green light to same-sex marriages in the Garden State.

October 18, 2013 in Equal Protection, News, Opinion Analysis, Sexual Orientation, State Constitutional Law | 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 18, 2013

Daily Read: Deborah Rhode on Lawyers as Leaders - - - And Constitutional Litigation

In her commentary "Why Lawyers Become Bad Leaders" at the Chronicle of Higher Education, Deborah Rhode has several arguments supporting her position, but of great interest to ConLawProfs is her use of prominent lawyers Ted Olson and David Boies (pictured below)  in the Proposition 8 litigation as a "case study in the limitations of lawyers as leaders." 

BOIES-OLSON-WIKI
Should Boies and Olson be so celebrated?

Rhode notes that they were hired by a political strategist and a Hollywood producer to challenge Prop 8, and although they knew that leaders of gay-rights organizations were opposed to a federal challenge to Prop 8, they did not consult them before filing suit.  She then discusses some of the issues with their litigation, noting "Olson and Boies clearly had something to gain from being lead counsel in a case of such prominence."  Recall that even before the case reached the Supreme Court, the trial garnered much attention.   Rhode writes:

Boies and Olson pursued a high-risk strategy against the advice of groups that had the greatest expertise and stake in the outcome. Most observers believe that a low-risk strategy of challenging Prop 8 at the ballot box would have been successful, as polls suggested that California voters had changed their views on the ban. Such a strategy would have exposed the gay-rights movement to less risk of an adverse Supreme Court precedent while accomplishing the same result.

That is not to deny the accomplishments of Boies and Olson as litigators, the advantages of having a prominent conservative like Olson supporting gay marriage, or the social commitments that underpinned their actions. But it is to underscore the difference between effective lawyers and effective leaders.

A quality of successful leadership is the capacity to work collaboratively. The most-effective leaders are those who can see past their own ambitions and desire for limelight.

Rhode's article is worth a read - - - and much consideration.

September 18, 2013 in Fourteenth Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)