Wednesday, February 1, 2012
Tracey Cooper-Harris (pictured right), a member of the US Army for twelve years, has filed a complaint against the US for veterans benefits for her same-sex partner, arguing that DOMA and the VA definition of "spouse" violates the Fifth Amendment's equal protection component. Cooper-Harris is represented by the Southern Poverty Law Center, the organization that also litigated the landmark case Frontiero v. Richardson involving a woman's right for military benefits for her husband.
This lawsuit joins the other constitutional challenges to DOMA including one filed by the Service Members Legal Defense Network, as well two companion decisions by federal district judge Tauro declaring DOMA unconstitutional, the Obama DOJ's decision not to defend it, and legislative efforts at repeal.
(h/t Jen Hogg)
In what the First Circuit calls the "second chapter" of challenges to the constitutionality of Maine's registration and disclosure laws regarding election-related advocacy, the court in National Organization for Marriage [NOM] v. McKee, essentially reaffirms its opinion last August in a case by the same name (and now to be known as NOM I). The cases stem from the hard-fought same-sex marriage ballot initiative in Maine in 2009. NOM II involves both NOM and American Principles in Action [APIA], although the court expressed doubt regarding APIA's standing as to some of the claims, and the principle arguments revolve around NOM.
The unanimous panel decision, authored by Judge Kermit Lipez, focuses on the "only substantively distinct issue" raised by this appeal as contrasted to NOM I: the constitutionality of the definition of "contribution" in the "ballot question committee" [BQC] provision, Me. Rev. Stat. tit. 21-A, §1056-B. The court concludes that the BQC provision, like the PAC provision at issue in NOM I survives the constitutional challenge.
The court quickly disposed of the First Amendment claims, on the basis of NOM I, but paid more attention to the assertion that the term "contribution" was unconstitutionally vague as a matter of due process, and that any reliance on subjective beliefs of a contributor were likewise void for vagueness. At issue were email communications such as:
"You can fight back! Can you help defend marriage in Maine and across the country, by donating $5, $10, or even, if God has given you the means, $100 or $500?"
The panel found that Maine can constitutionally require parties to determine whether or not a "reasonable listener would understand their advocacy as an invitation to contribute to a specific ballot question campaign"- - - such as that in Maine - - - based upon the specific earmarking words of the solicitor, in this case NOM.
The court engaged in such reasoning after specifically faulting the appellants' attorneys for poor lawyering in terms of the as-applied challenges:
Appellants, however, do not address in their brief the vagueness problem with respect to donations received following any specific communication they distributed or proposed. Rather, they assert in conclusory language that subsections B and C of section 1056-B "are unconstitutionally vague as applied to most of Plaintiffs' speech." They make glancing reference to the content of the emails, noting that "some of NOM's solicitations mentioned Maine," and query whether, as a result of those mentions, donors' knowledge of the Maine ballot measure would be enough to make their donations covered "contributions" and NOM a BQC. They do not explain why they were unable, or would be unable, to link particular contributions received to their advocacy efforts on the Maine referendum, focusing their arguments instead on the language of the statute generally.
Thus, appellants are not only unable to bring a facial vagueness challenge to section 1056-B, but their failure to develop their as-applied challenges also would allow us to reject those claims summarily if we were so inclined. [citations omitted]. Given the importance of the issues raised, however, and the resources expended by all parties in this extensive litigation, we choose to explain why their vagueness contentions would in any event be substantially, if not entirely, unavailing. [citations omitted].
As the panel succinctly stated, it saw "no constitutional problem with expecting entities like appellants to make pragmatic, objective judgments about the nature of the contributions they receive where their own conduct and communications are the primary elements in the determination."
While NOM's attorney has reportedly vowed to take the case to the United States Supreme Court, there seems to be little here that would merit a grant of a writ of certiorari.
However, with the same-sex marriage issuepossibly again on the ballot in Maine in 2012, there may certainly be more litigation.
February 1, 2012 in Campaign Finance, Due Process (Substantive), Elections and Voting, First Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation, Speech, Standing | Permalink | Comments (0) | TrackBack (0)
Friday, January 27, 2012
The Sixth Circuit today in its opinion in Ward v. Polite remanded the First Amendment free speech and free exercise of religion claims of a graduate counseling student disciplined because she would not counsel a gay client in her required student practicum. The panel reversed the grant of summary judgment in favor of Eastern Michigan University.
This case may bring to mind a very similar situation from Augusta State University, Georgia, Keeton v. Anderson-Wiley, that we discussed earlier, in which the Eleventh Circuit held that the student-counselor did not have valid First Amendment claims. However, the Sixth Circuit distinguished Keeton at length:
At one level, the two decisions look like polar opposites, as a student loses one case and wins the other. But there is less tension, or for that matter even disagreement, between the two cases than initially meets the eye. The procedural settings of the two cases differ. In Keeton, the district court made preliminary fact findings after holding a hearing in which both sides introduced evidence in support of their claims. Not only are there no trial-level fact findings here, but Ward also gets the benefit of all reasonable factual inferences in challenging the summary-judgment decision entered against her.
The two claimants' theories of constitutional protection also are miles apart. Keeton insisted on a constitutional right to engage in conversion therapy—that is, if a "client discloses that he is gay, it was her intention to tell the client that his behavior is morally wrong and then try to change the client's behavior." That approach, all agree, violates the ACA [American Counseling Association] code of ethics by imposing a counselor's values on a client, a form of conduct the university is free to prohibit as part of its curriculum. Instead of insisting on changing her clients, Ward asked only that the university not change her—that it permit her to refer some clients in some settings, an approach the code of ethics appears to permit and that no written school policy prohibits. Nothing in Keeton indicates that Augusta State applied the prohibition on imposing a counselor's values on the client in anything but an even-handed manner. Not so here, as the code of ethics, counseling norms, even the university's own practices, seem to permit the one thing Ward sought: a referral.
The two decisions in the end share the same essential framework and reasoning. They both apply Hazelwood to curricular speech at the university level, and they both show that the even-handed enforcement of a neutral policy is likely to steer clear of the First Amendment's free-speech and free-exercise protections. Both decisions also are consistent with Christian Legal Society, which considered whether a Christian organization at a law school could insist that its members adhere to certain faith-based codes of conduct. The Court held that the law school's antidiscrimination policy, requiring registered student organizations to accept all comers, did not violate the First Amendment on its face, yet it remanded the case to determine whether the school selectively enforced the policy against some organizations but not others. While Keeton involved Augusta State's across-the-board application of an ethical rule that prohibits counselors from imposing their values on clients, today's case reveals evidence that Eastern Michigan University selectively enforced a no-referral policy against Ward.
The Sixth Circuit's attempt to distinguish its opinion from Keeton - - - mostly on procedural and factual grounds - - - seems persuasive. Yet the distinctions may be too finely wrought.
On remand, the district court will be considering injunctive relief. As to damages, the question of qualified immunity remains. Clearly, however, the Sixth Circuit found that there was no valid facial challenge and affirmed the dismissal of some defendants.
[image: Vincent Van Gogh, Stone Bench in the Asylum at Saint-Remy (The Stone Bench), via]
Tuesday, January 3, 2012
The Civil Unions Law, Act 1, of Hawai'i became effective January 1, 2012.
In the last days of 2011, several religious groups sued for a Temporary Restraining Order (TRO) to stop the Act's implementation and prevent any enforcement against them. In a relatively brief opinion, federal district judge J. Michael Seabright denied the TRO in Emmanuel Temple v. Abercrombie.
The complaint seeking the TRO alleged that because Act 1 does not have a "religious exemption," the plaintiffs could suffer a First Amendment injury. However, the judge found that the claim was not justiciable because the plaintiffs lacked standing and their challenge was not ripe, noting that in many cases the "injury in fact" prong of the standing analysis coincides with an inquiry regarding ripeness.
The judge found that any threat of enforcement of Act 1 against the plaintiffs was "highly speculative." A number of unforseeable events would have to occur:
- A couple would have to ask plaintiffs to use a particular facility of theirs - - - which presumably would have to be a "public accomodation" - - - for a civil union made possible by Act 1;
- Plaintiffs would have to wrongly refuse based upon a protected ground;
- The couple, having been denied, would have to file a complaint with the Hawaii Civil Rights Commission;
- The state authorities would have to decide to proceed against plaintiffs.
The judge found it was equally speculative that a couple, having been denied, would chose to file a judicial action rather than an action with the Commission.
For ConLawProfs starting the semester with Article III justiciability, this could be the basis of a great class problem.
Situating the case outside that doctrinal framework, it is an example of religious groups filing federal actions against same-sex relationship recognition, as in New York, despite that state's religious exemption in the statute.
Further, it is yet another incident in the saga of same-sex marriage in Hawai'i; a good review and the latest litigation by same-sex couples challenging the civil union law for not providing marriage is here.
[image: Kahaluʻu Fishpond seawall and wedding chapel, Oahu, Hawaii, on National Register of Historic Places, via]
January 3, 2012 in Cases and Case Materials, Equal Protection, First Amendment, Fourteenth Amendment, Gender, Religion, Ripeness, Sexual Orientation, Standing, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Sunday, December 18, 2011
Can a counseling program at a public university require a student to address her deficiencies in becoming a "multiculturally competent counselor," particularly with regard to working with sexual minorities, before allowing her to participate in the program's clinic practicum?
The short answer from the Eleventh Circuit is "definitely, yes." In a 40 page opinion, Keeton v. Anderson-Wiley, the Eleventh Circuit affirmed the District Judge's denial of a preliminary injunction to Jennifer Keeton, a student seeking a master's degree in school counseling at Augusta State University, Georgia. The panel's opinion, authored by Judge Rosemary Barkett, found that Keeton did not show a likelihood of prevailing on the merits. The opinion was joined by Judge Phyllis Kravitch. Judge William Pryor, controversial for his own oft-stated Christian beliefs and confirmed 53-45 by the Senate to the Eleventh Circuit six years ago after serving in a recess appointment, concurred specially, largely to point out how views on homosexuality have changed.
The court rejected Keeton's claims of viewpoint discrimination, retaliation, and compelled speech under the Speech Clause and free exercise under the Free Exercise Clause of the First Amendment, spending the bulk of the opinion on viewpoint discrimination. While Keeton argued that she was discriminated against because of her Christian beliefs, specifically those she held about "homosexuality," Judge Barkett stressed throughout the opinion that the problem was not Ms. Keeton's beliefs, but whether she could - - - or would even agree to try - - - to engage in ethical counseling under the profession's standards. The evidence showed that Ms. Keeton had made several troubling statements indicating that she would not follow the ethical guidelines. She said that as a school counselor she would respond to a student in crisis about his sexual orientation, by voicing her disapproval, telling him any homosexual behavior was morally wrong, and referring him to someone practicing sexual conversion therapy. As Judge Barkett stated:
ASU’s officials confirmed that their primary concern was teaching Keeton not to impose her values on clients and how to become a more effective counselor. Also, in the addendum to the remediation plan, which was added in direct response to Keeton’s email claim that she believed she was being asked to alter her personal religious beliefs, ASU’s officials clarified that “[t]he content of your moral or religious beliefs is not in question,” and that the remediation plan was concerned with teaching her how “to respond in an ethical manner and avoid imposing your personal values on the client.”
The court applied the Hazelwood framework from Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), noting that the practicum might be reasonably thought to "bear the imprimatur of the school" and the practicum, as well as the specific remediation plan to assist Ms. Keeton with meeting acceptable standards, were part of the curriculum.
While the court's treatment of Ms. Keeton's "compelled speech" claim relying on West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), is relatively brief, the court's discussion reveals the heart of the court's reasoning:
ASU is not forcing Keeton to profess a belief contrary to her own personal beliefs. Rather, it is compelling her to comply with the ACA [American Counseling Association] Code of Ethics, which requires those who wish to be counselors to separate their personal beliefs from their work. When a GLBTQ client asks, for example, if his conduct is moral, students are taught to avoid giving advice, to explore the issue with the client, and to help the client determine for himself what the answer is for him. If a client determines for himself that his conduct is moral, the ACA Code of Ethics requires the counselor to affirm the client, which means that the counselor must respect the dignity of the client by accepting the client’s response without judgment, not that the counselor must say that she personally believes that the client is correct. Thus, far from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, ASU instructs her not to express her personal beliefs regarding the client’s moral values. This is the form of treatment that ASU and the ACA have determined best promotes client welfare, which, in their view, is the objective of secular counseling.
Moreover, the court's discussion reveals the applicability of the court's reasoning in other contexts, including law and legal education:
Just as a medical school would be permitted to bar a student who refused to administer blood transfusions for religious reasons from participating in clinical rotations, so ASU may prohibit Keeton from participating in its clinical practicum if she refuses to administer the treatment it has deemed appropriate. Every profession has its own ethical codes and dictates. When someone voluntarily chooses to enter a profession, he or she must comply with its rules and ethical requirements. Lawyers must present legal arguments on behalf of their clients, notwithstanding their personal views. Judges must apply the law, even when they disagree with it. So too counselors must refrain from imposing their moral and religious values on their clients.
Finally, the Supreme Court has hardly indicated an intention to limit a school’s power to require its students to demonstrate whether they grasp a particular lesson. A school must, for instance, be free to give a failing grade to a student who refuses to answer a test question for religious reasons, or who refuses to write a paper defending a position with which the student disagrees ... No doubt, a law school would be permitted to require a student who expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state’s bar rules to take extra ethics classes before letting the student participate in a school- run clinic in which the student would be representing actual clients. These actions, like ASU’s officials’ imposition of the remediation plan, are the types of academic decisions that are subject to significant deference, not exacting constitutional scrutiny.
[image: Winslow Homer, The Country School, via]
Wednesday, December 14, 2011
The UK's Guardian has a lengthy and worth reading report entitled " Rape in the US military: America's dirty little secret" with the subtitle, "A female soldier in Iraq is more likely to be attacked by a fellow soldier than killed by enemy fire." The Guardian's article mentions a lawsuit of 28 plaintiffs "who claim to have been subjected to sexual assaults while serving in the armed force" against Donald Rumsfeld and Robert Gates "for a culture of punishment against the women and men who report sex crimes and a failure to prosecute the offenders."
In a 2 page opinion, Judge Liam O'Grady dismissed that lawsuit the same day as the Guardian article. Cioca v. Rumsfeld garnered much attention when it was filed in February, including a NYT article and a widely distributed video of Kori Cioca:
The judge's order concluded that Cioca and the other plaintiffs do not have a Bivens action (Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)), because such a remedy is not available when '"special factors counseling hesitation'" are present, and the "unique disciplinary structure of the military establishment" is a "special factor" that "counsels against judicial intrusion." In short "congressionally uninvited intrusion into military affairs by the judiciary is inappropriate."
This same reasoning of military deference was once prominent in challenges to the military's sexual orientation policy of "don't ask, don't tell" (DADT). More recently, of course, the courts were much less deferential, including the Ninth Circuit's injunction against the policy earlier this year, before the policy was repealed, and the Ninth Circuit's dismissal of the case as moot. Yet as we noted, the Ninth Circuit did more than dismiss the case as moot, it specifically stated that it
"vacate[d] the district court’s judgment, injunction, opinions, orders, and factual findings—indeed, all of its past rulings—to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect."
Thus, those DADT findings overcoming judicial deference to the military are declared to be void, although it does seem that they might not be entirely irrelevant.
Friday, December 9, 2011
The second wave of challenges to marriage laws excluding same-sex couples began in Hawai'i. The Baehr v. Lewin decision from the Hawai'i Supreme Court in 1993 that the opposite-sex policy was a sex classification subject to strict scrutiny under the state constitution set off a chain of events. In Hawai'i, there was a successful state referendum in Hawai'i retaining the power for the legislature to decide the sex of parties to a marriage. Nationally, there was ultimately the federal statute DOMA (now in federal disfavor) as well as many other state DOMAs. However, there were also developments in other states that resulted in the opposite-sex requirement being relaxed.
The complaint in Jackson v. Abercrombie filed in the federal district of Hawai'i this week challenges the Hawai'i opposite-sex marriage requirement as violating the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The 27 page complaint includes an excellent chronology: a summary of the Hawai'i litigation and subsequent cases, including Perry v. Brown now before the Ninth Circuit. The complaint also alleges that same-sex marriage has gained in popular acceptance since Baehr v. Lewin and that the civil union law, effective in Hawai'i in 2012, is not an adequate substitute for marriage.
Most likely, a district judge would wait for the Ninth Circuit decision in Perry, but presumably the state of Hawai'i will respond.
[image: Hawai'i via]
Friday, November 18, 2011
The latest installment in the continuing saga of the quest for anonymity by "Protect Marriage" members and supporters is the Ninth Circuit's denial of the emergency appeal.
As we most recently discussed, on a remand from the United States Supreme Court, the district court's opinion ordered disclosure of the names of those who signed an anti-same-sex marriage petition in Washington state in accordance with the state's usual processes. Recall that in Doe v. Reed, decided by the United States Supreme Court in June 2010, the Court rejected a facial challenge to the state of Washington's Public Records Act (PRA), RCW 42.56 that governs the disclosure of public records including petitions seeking a ballot initiative. The ballot initiative at issue sought to repeal the "everything but marriage" law for same-sex couples and was spear-headed by the controversial Protect Marriage organization. The John Doe plaintiffs challenged the public disclosure of their names as a violation of the First Amendment.
In this latest round, the John Doe plaintiffs sought to "enjoin the Washington Secretary of State from further releasing the R-71 petitions, the Intervenors from distributing the petitions, and the district court from further disclosing the identity of Protect Marriage Washington’s John Doe parties and witnesses in the district court’s unredacted order."
In its brief opinion, over one dissent, the Ninth Circuit panel stated it "preliminarily believes that the appeal is moot due to the release of R-71 petitions" and thus held that the plaintiff/ appellants’ "renewed emergency motion for an injunction pending appeal is denied."
Thursday, November 17, 2011
Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure [PROPOSITION 8] possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.
The short answer from the California Supreme Court today is "Yes." Or, as the conclusion to the court's opinion in Perry v. Brown states:
when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
It takes the court some 60 pages to reach this conclusion in an unanimous opinion written by the new Chief Justice Cantil-Sakauye, with an additional 7 page concurring opinion by Justice Kennard. Kennard wrote to "highlight the historical and legal events that have led to today‘s decision and to explain why I concur in that decision," and reiterated her position that is it is the judicial role to decide whether "excluding individuals from marriage because of sexual orientation can be reconciled with our state Constitution‘s equal protection guarantee." On the contrary, the main opinion de-emphasized Proposition 8: "the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8. Instead, the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter."
The California Supreme Court states that "past official proponents of initiative measures in California have uniformly been permitted to participate as parties — either as interveners or as real parties in interest — in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored," and without any specific showings. The opinion, it seems, could have ended there but the California Supreme Court stated it felt it was "useful and appropriate briefly to set forth, at the outset, our understanding of the federal decisions that discuss the role that state law plays in determining whether, under federal law, an individual or entity possesses standing to participate as a party in a federal proceeding." Although the opinion emphasized that its "discussion of federal decisions is not intended to, and does not purport to, decide any issue of federal law, and we fully recognize that the effect that this opinion‘s clarification of the authority official proponents possess under California law may have on the question of standing under federal law is a matter that ultimately will be decided by the federal courts," certainly its analysis will be carefully considered by the Ninth Circuit.
The court's major analytic attention, however, was devoted to matters of state constitutional law focused on the initiative process. In these cases, non-state actors have had the ability to defend the initiative from challenges. Additionally, the court noted that "even outside the initiative context it is neither unprecedented nor particularly unusual under California law for persons other than public officials to be permitted to participate as formal parties in a court action to assert the public‘s or the state's interest in upholding or enforcing a duly enacted law."
If the Ninth Circuit fully credits the California Supreme Court's opinion and finds it sufficient to confer Article III standing, the court will proceed to the merits and review Judge Walker's opinion in Perry v. Brown (f/k/a Perry Schwarzenegger) that Proposition 8 violates the Constitution.
[image: Pro and anti-Proposition 8 protesters rally in front of the San Francisco City Hall via].
Thursday, October 27, 2011
DOMA - - - the Defense of Marriage Act - - - already suffering from legislative efforts at repeal and seriously questionable constitutional status, including the Obama DOJ's decision not to defend its constitutionality, has been challenged again.
In a Complaint filed today, the Servicemembers Legal Defense Network representing several plaintiffs, challenged the constitutionality of DOMA in conjunction with several other statutes that govern benefits for military servicemembers. The Complaint was filed in the United States District Court for the District of Massachusetts, the same district in which Judge Tauro found DOMA unconstitutional in companion cases in July 2010.
Paragraph 67 of the Complaint distills the argument:
The current military family benefits regimes of Title 10, Title 32 and Title 38, particularly as modified by DOMA, fail to address the modern military. These laws were crafted at a time when gays and lesbians were precluded from openly serving in the military, and when same-sex marriages were not legal in the United States. While Congress may have assumed that Title 10, Title 32 and Title 38 effectively covered all military spouses in the past, that is not the current reality. The military is a reflection of our society as a whole. Now that same-sex marriages are legal, and gays and lesbians can serve openly in the military, service members -- such as the Plaintiffs -- with same-sex spouses do serve in the ranks. To maintain the uniformity of benefits that Congress believed it was creating in Title 10, Title 32 and Title 38, the definition of "spouse" must include these same-sex spouses as well.
The Constitutional grounds include Equal Protection, the Tenth Amendment, the fundamental constitutional right to marry (without a specific constitutional text), and Bill of Attainder.
Most unique is the Bill of Attainder argument, based on Article I, Section 9 of the United States Constitution which states that "No Bill of Attainder or ex post facto Law shall be passed." The Complaint alleges that the "Bill of Attainder clause prohibits as unconstitutional any law that legislative determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." The argument is that as a result of DOMA's application to federal military benefits,
the federal government imposes a disability upon a clearly identifiable class of persons involved in legally-recognized same-sex marriages, including Plaintiffs, for no purpose other than to punish them. Plaintiffs were denied federal military benefits that they would otherwise be entitled to if not for their membership in this clearly identifiable class. Thus, through DOMA, Plaintiffs have been subjected to an unconstitutional Bill of Attainder.
The defense of DOMA is expensive: the original contract awarded by House Speaker John Boehner to Bush-era Solicitor General Paul Clement and capped at $500,000 was reportedly raised to three times that amount - - - $1.5 million dollars - - - earlier this month. This newest lawsuit may occasion even higher costs.
Wednesday, October 19, 2011
Doe v. Reed: On remand, federal district court rejects as-applied challenge and orders names disclosed
In a remand from the United States Supreme Court, the district court's opinion ordered disclosure of the names of those who signed an anti-same-sex marriage petition in Washington state in accordance with the state's usual processes.
Recall that in Doe v. Reed, decided by the United States Supreme Court in June 2010, the Court rejected a facial challenge to the state of Washington's Public Records Act (PRA), RCW 42.56 that governs the disclosure of public records including petitions seeking a ballot initiative. The ballot initiative at issue sought to repeal the "everything but marriage" law for same-sex couples and was spear-headed by the controversial Protect Marriage organization. The John Doe plaintiffs challenged the public disclosure of their names as a violation of the First Amendment.
The Court's opinion in Doe v. Reed was a clear rejection of the facial challenge, with only Justice Thomas dissenting, but two concurring opinions proffered views on the as-applied challenge to be decided by the district court on remand. Alito's concurrence contended that the plaintiffs have a "strong" First Amendment argument in light of the "widespread harassment and intimidation suffered by supporters of California’s Proposition 8." On the other hand, Stevens (joined by Breyer) wrote that " Any burden on speech that petitioners posit is speculative as well as indirect. . . . there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures."
United States District Judge Benjamin Settle agreed with Justice Stevens. In a careful and detailed 34 page opinion resolving the cross motions for summary judgment, Judge Settle considered all the evidence before him that the John Doe plaintiffs were harassed, which included "harassing" acts such as being "glared" at or receiving an angry text from one's own brother. Here is one of the more extensive examples:
Roy Hartwell, John Doe # 4. Roy Hartwell (“Hartwell) testified about R-71 [the referendum] in front of the Washington State legislature, gathered signatures for the petition in public places, and participated in television interviews regarding R-71. Stafford Decl., Ex. D (Hartwell Dep.) 7:13-8:18, 16:1-17:16, 25:17-23, 30:24-31:10. Hartwell testified in his deposition that one harassing incident involved two ladies that glared at him and one said “we have feelings too.” This occurred while Hartwell was collecting signatures for R-71 at a grocery store. Id. 18:3-12 (also discussing that the comment appeared to shake an older lady up, who signed the petition anyway). Hartwell also testified about others who he believed harassed him about the R-71 petition. See, e.g., id. 19:1-20:25 (discussing a woman who approached him at the grocery and asserted she would bring her friends to the church, which did not occur); 21:10-22:16 (discussing a lady who took Hartwell and Hartwell’s wife’s picture while they were collecting signatures at a Wal-Mart and said she would post them on Facebook to enable her friends to see what the Hartwells look like; Hartwell is unaware if the Facebook posting occurred); 22:23-23:10 (discussing a customer at Wal-Mart that asked a manager to ask the Hartwells to leave; the manager did not ask them to leave). In none of the events described by Hartwell did he feel the need to contact the police. See id. 23-11-25:9.
Judge Settle found that the John Doe plaintiffs did not produce the type of serious and widespread harassment necessary to prevail on their as applied challenge. Additionally, the John Doe plaintiffs "supplied no evidence that police were or are now unable or unwilling to mitigate any claimed harassment or are now unable or unwilling to control the same, should disclosure be made." While certainly people should be civil in their disagreements - - - the "very foundation of preserving a free and open society" - - - the judge found that the facts simply did not "rise to the level of demonstrating that a reasonable probability of threats, harassment, or reprisals exists as to the signers of R-71, now nearly two years after R-71 was submitted to the voters in Washington State."
The judge therefore lifted the injunction preventing the signers of the petition and granted summary judgment in favor of the defendants.
Thursday, September 29, 2011
The Ninth Circuit issued a per curium opinion today in Log Cabin Republicans v. United States dismissing the case as moot. This is absolutely predictable.
Despite extensive litigation which we last mentioned here, with the repeal of 10 U.S.C. § 654(b) effective September 20, 2011, the policy known as DADT, "don't ask, don't tell," regarding sexual minorities in the military was no longer law. Thus, a challenge to the statute's constitutionality is no longer a live "cae or controversy" under Article III.
The Ninth Circuit opinion, however, is no so simple. The panel considered and rejected two arguments by Log Cabin Republicans that the case should not be dismissed as moot.
First, the panel rebuffed the argument that while the injunctive relief might be moot, the declaratory relief might not be. The speculation that "a future Congress whose composition, agenda, and circumstances we cannot know—will reenact Don’t Ask, Don’t Tell," or that the same Congress that enacted the Repeal Act could change course, was mere speculation and "our speculation cannot breathe life into this case."
Second, the panel strongly repudiated the claim of “collateral consequences” from a challenged statute even when the statute is repealed. The panel resolved this issue by simply stating that any missed benefits discharged service members may have lost as a result of their separation pursuant to DADT were not legal penalties from past conduct, they did not fall within collateral consequences exception. However, the panel went farther:
Because Log Cabin has stated its intention to use the district court’s judgment [holding DADT unconstitutional] collaterally, we will be clear: It may not. Nor may its members or anyone else. We vacate the district court’s judgment, injunction, opinions, orders, and factual findings—indeed, all of its past rulings—to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect. The repeal of Don’t Ask, Don’t Tell provides Log Cabin with all it sought and may have had standing to obtain.
Judge Diarmuid O'Scannlain wrote a specially concurring opinion, as lengthy as the per curium decision, devoted not to the question of mootness, but to share his thoughts about Lawrence v. Texas: "I write separately because our inability to reach the merits may leave uncertainty about the role Lawrence v. Texas, 539 U.S. 558 (2003), may have in substantive due process challenges. Although Congress spared us the need to reach the merits in this case, other such challenges will come to the courts."
Judge O'Scannlain, widely regarded as exceedingly conservative, thus wrote an essentially advisory opinion, violating the basic premise of the Article III case and controversy requirement. It seems a bit paradoxical that he wrote this in a case in which the panel dismissed the claim as moot, lest the court render an advisory opinion in contravention of the Article III case and controversy requirement.
September 29, 2011 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Mootness, Opinion Analysis, Sexual Orientation, Sexuality, Standing | Permalink | Comments (1) | TrackBack (0)
Wednesday, September 28, 2011
As the NYT reported yesterday, the clash between the same-sex marriage law in NY, the Marriage Equality Act, and the objections, religiously based, of public employees including town clerks, if fomenting.
As we previously discussed, while the Marriage Equality Act has a religious exemption, this does not cover town clerks who issue marriage licenses. And as we also previously discussed, the Alliance Defense Fund issued a memo to town clerks entitled "Your Right to Request An Accommodation of Your Sincerely Held Religious Beliefs Concerning Issuance of Marriage Licenses to Same- Sex Couples."
The NYT quotes the clerk in the rural community, Rose Marie Belforti, as saying "state law 'protects my right to hold both my job and my beliefs.' " While the article doesn not mention the memo, the state law claim is indeed discussed in the memo, which does not argue the First Amendment.
At issue may be the contours of "religious accommodation." According to the NYT article, the clerk's office is open only a limited number of hours, but same-sex couples desiring a marriage license needed to telephone in advance for a special appointment so that a substitute clerk could handle the matter. The Town Clerk is an elected position.
September 28, 2011 in Current Affairs, Equal Protection, Family, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, News, Religion, Sexual Orientation, Speech | Permalink | Comments (0) | TrackBack (0)
Monday, September 19, 2011
The state has filed a Motion to Dismiss in New Yorkers for Constitutional Freedoms v. New York State Senate, the challenge to New York's same-sex marriage statute. The plaintiffs, "New Yorkers for Constitutional Freedoms" describes its mission on its website thusly: "As a Christian ministry, NYCF exists to influence legislation and legislators for the Lord Jesus Christ." (emphasis in original)).
The motion to dismiss has some discussion of the merits, which as we have previously noted are very weak, but devotes most of its argument to justiciability issues under the state constitution. The State Attorney of New York argues that "to the extent plaintiffs complain about Senate procedures, this case is nonjusticiable." Essentially, the Attorney General argues that the case presents a political question and the entry into the fray would violate separation of powers under the state constitution. The Attorney General also argues that the plaintiffs lack standing under the state constitution. The plaintiffs cannot allege a personally concrete injury or how it suffered any injury distinct from the public at large.
Friday, September 9, 2011
The intersections of constitutional protections for liberty, equality, free speech, and free exercise of religion can make for convoluted and contentious cases. Christian Legal Society (CLS) v. Martinez, decided by the Court in 2010, is a prime example, with the additional factual setting at a law school heightening the interest for legal scholars.
In How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, 38 Hastings Const. L.Q. 631 (2011), Professor Julie Nice, University of San Francisco School of Law, pictured left, argues that the case illuminates several different doctrinal and theoretical controversies, ultimately making liberty more robust because it refuses the conflation of identity and ideology.
The article is further discussed as my selection for the Jotwell Equality section; it's the best essay I've read on constitutional equality in the last year. It's essential reading for every ConLawProf.
September 9, 2011 in Equal Protection, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Profiles in Con Law Teaching, Religion, Scholarship, Sexual Orientation, Sexuality, Speech, Supreme Court (US), Theory | Permalink | Comments (1) | TrackBack (0)
Tuesday, September 6, 2011
Ninth Circuit: Arizona's Denial of Benefits to Same-Sex Partners of Public Employees Violates Equal Protection
In a relatively brief opinion today, a panel of the Ninth Circuit affirmed a district judge's finding that Arizona's denial of health care benefits to same-sex partners of public employees violated the Equal Protection Clause.
In Diaz v. Brewer, the Ninth Circuit panel considered a challenge by public employees, including several university faculty members, to "Section O," from House Bill 2013, which included a statutory provision, Ariz. Rev. Stat. § 38-651(O) that redefined “dependents” as “spouses,” and thus eliminate coverage for domestic partners allowed by a 2008 act.
On appeal, the state argued that the district court improperly construed the complaint's allegations as true and that the district court "impermissibly recognized a constitutional right to healthcare." The Ninth Circuit found both of these arguments rested on a "misunderstanding" of the district judge's opinion. The court stated:
The state is correct in asserting that state employees and their families are not constitutionally entitled to health benefits. But when a state chooses to provide such benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular. The most instructive Supreme Court case involving arbitrary restriction of benefits for a particular group perceived as unpopular is U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973).
The Ninth Circuit carefully discussed Moreno - - - the "hippie food stamp case" as many students refer to it - - - and then articulated an equally careful analogy:
Here, as in Moreno, the legislature amended a benefits program in order to limit eligibility. Since in this case eligibility was limited to married couples, different-sex couples wishing to retain their current family health benefits could alter their status — marry — to do so. The Arizona Constitution, however, prohibits same-sex couples from doing so.
The Ninth Circuit was quite clear that it was applying rational basis scrutiny, as the district judge had also been, and held that Section O was based on a bare desire to harm a politically unpopular group.
The "framers of the Constitution," the court stated, quoting Justice Robert Jackson in Railway Express Agency v. New York, "knew, and we should not forget today that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally."
Wednesday, August 17, 2011
This is from SCOTUSblog's same-sex marriage symposium featuring discussions about the Proposition 8 litigation and DOMA litigation, both of which may be heading for the United States Supreme Court.
My contribution focuses on the rational basis standard of review:
The federal Defense of Marriage Act (DOMA) and California’s Proposition 8 are both subject to judicial review under a standard at least as rigorous as rational basis.
There are serious and worthwhile arguments that courts should employ a more rigorous standard of review than rational basis in same-sex marriage litigation. However, federal district judges in two important decisions that may be heading to the United States Supreme Court have concluded that DOMA and Proposition 8 cannot survive even the low standard of rational basis. Considering DOMA Section 3, federal district judge Joseph Tauro in Gill v. Office of Personnel Management declined to decide whether the federal statute should be subject to strict scrutiny “because DOMA fails to pass constitutional muster even under the highly deferential rational basis test.” Similarly, ruling on Proposition 8 in Perry v. Schwarzenegger, federal district judge Vaughn Walker held that although the “trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation,” the application of “strict scrutiny is unnecessary,” because “Proposition 8 fails to survive even rational basis review.”
Judge Tauro’s decision is on appeal to the First Circuit, while Judge Walker’s decision is awaiting resolution of the important issue of whether the proponent/intervenors have standing to appeal to the Ninth Circuit, with a certified question presently before the California Supreme Court. Whether the rational basis standard of review should be used to evaluate DOMA is also before Judge Barbara Jones of the Southern District of New York in Windsor v. United States. The Department of Justice is not defending the constitutionality of DOMA in Windsor, having concluded that DOMA fails to meet the heightened level of scrutiny it has determined should be used for sexual orientation classifications. The Bipartisan Legal Advisory Group of The United States House of Representatives (BLAG), defending DOMA in Windsor, filed its Memorandum on August 1, vigorously asserting that rational basis is the correct standard and that DOMA easily satisfies it.
August 17, 2011 in Commerce Clause, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Gender, Sexual Orientation, Sexuality, Speech, Supreme Court (US), Weblogs | Permalink | Comments (0) | TrackBack (0)
Friday, August 12, 2011
National Organization for Marriage ("NOM"), a New Jersey-based nonprofit corporation organized for the purpose of providing "organized opposition to same-sex marriage in state legislatures," challenged state laws from both Maine and Rhode Island that require it to disclose its expenditures in the respective states.
Both federal district judges considering the actions largely rejected NOM’s challenges and the First Circuit has also rejected the challenges in a lengthy opinion in National Organization for Marriage v. McKee, regarding the Maine laws, and a much more brief opinion on the Rhode Island statute in National Organization for Marriage v. Daluz, which relies upon McKee. In addition, NOM wanted the trial proceedings to be sealed, which the court also rejected.
In part, NOM challenged Maine’s definition of NOM as a PAC (political action committee), arguing that “any law defining an organization as a PAC is subject to strict scrutiny" because as "a matter of law, not fact," PAC status is burdensome and subjects an entity to "extensive regulations." The First Circuit found the argument unpersuasive, and further distinguished Citizens United, because Maine's provision does not condition political speech on the creation of a separate organization or fund, establishes no funding or independent expenditure restrictions, and imposes three simple obligations on an entity qualifying as a PAC: filing of a registration form disclosing basic information, quarterly reporting of election-related contributions and expenditures, and simple recordkeeping.
The First Circuit therefore applied exacting scrutiny - - - rather than strict scrutiny - - - requiring a "substantial relation" between the law and a "sufficiently important governmental interest." Again citing Citizens United, the panel concluded that the goal of providing "the electorate with information as to where political campaign money comes from and how it is spent" to be such a "sufficiently important" governmental interest capable of supporting a disclosure law.
Regarding the substantial relationship, the court considered various provisions in the Maine statutory scheme separately. The court roundly rejected NOM’s contention that to be substantially related, the disclosure requirement could only be imposed upon a PAC that had as its “major purpose” the nomination or election of a candidate. Quoting District Judge Hornsby, the panel agreed that NOM’s interpretation would "yield perverse results" :
Under NOM's interpretation, a small group with the major purpose of re-electing a Maine state representative that spends $1,500 for ads could be required to register as a PAC. But a mega-group that spends $1,500,000 to defeat the same candidate would not have to register because the defeat of that candidate could not be considered the corporation's major purpose.
NOM also argued that the $100 threshold for disclosure was unconstitutional - - - as too low and as unchanging. The First Circuit noted that it had upheld a $50 threshold a decade ago, and saw no need to depart from that view.
The panel agreed with the district court that "Citizens United has effectively disposed of any attack on Maine's attribution and disclaimer requirements.” NOM had argued that the required disclosures will "distract readers and listeners from NOM's message." Instead, the court held that the “requirements are minimal, calling only for a statement of whether the message was authorized by a candidate and disclosure of the name and address of the person who made or financed the communication, and again relying on Citizens United, stating that these were precisely the same requirements approved in Citizens United, and that indeed, the statute at issue in Citizens United was slightly more prescriptive.
The panel also rejected NOM’s arguments that the Maine statutory scheme was unconstitutionally vague. Specifically, NOM posed challenges to three sets of terms: (1) "promoting," "support," and "opposition"; (2) "influencing"; and (3) "initiation." In addition, NOM claims that the definition of "expressly advocate" is unconstitutionally vague because it invites the use of context to determine the purpose of a communication. The court upheld all of these terms, including reversing the district judge’s finding that “influencing” suffered from vagueness. The panel considered state law, as it said it must, that had provided a limiting construction to the term.
Regarding NOM's final complaint - - - that the district judge erred in not sealing the proceedings - - - the First Circuit reasoned that
NOM's argument flips the proper analysis on its head. The presumption here favors openness, and a court need make no finding, let alone one of "true necessity," in order to make the proceedings and documents in a civil trial public. Instead, it is the party seeking to keep documents sealed who must make a showing sufficient to overcome the presumption of public access.
There was only minimal reliance by the First Circuit on Doe v. Reed, the decision by the Supreme Court last year regarding disclosure of names on a petition in Washington state. The panel noted that NOM did not contend that it would be subject to threats or harassment given its disclosure. In the context of the request to have the trial record sealed, the court stated that "NOM's claims that its contractors and service-providers could be subject to harassment also lack support, resting upon allegations of harassment against a vendor that performed work for supporters of California's Proposition 8." Clearly, this was insufficient.
[image:Victor Dubreuil, Money to Burn,1893, via]
Tuesday, July 26, 2011
Last November, Edith Windsor filed a complaint in the Southern District of New York as the survivor of a same-sex couple married in Canada. Windor seeks a refund of estate taxes paid because the marriage was not recognized by the federal government and argues that the Defense of Marriage Act, DOMA, section 3 is an unconstitutional denial of equal protection.
Today, the Attorney General of New York filed an amicus brief supporting Windsor. With same-sex marriage now legal in New York (although a challenge was filed yesterday), the state has a substantial interest in the effect of DOMA. The state joins Windor's equal protection arguments, but also raises a Tenth Amendment argument:
Although plaintiff has not raised a Tenth Amendment claim in her complaint, principles of federalism should inform this Court’s review of her equal-protection claim as well. Federalism protects not merely the interests of state governments, but also individual liberty: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Bond v. United States, 131 S. Ct. 2355, 2364 (2011). The power of Congress is at its lowest when it seeks to discourage States from enacting statutes, like the Marriage Equality Act, that are at the core of the States’ sovereignty. In analyzing the validity of the Gun-Free School Zones Act under the Commerce Clause, Justice Kennedy instructed that “[A]t the least we must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern.” United States v. Lopez, 514 U.S. 549, 580 (1995) (Kennedy, J., concurring). So too here, the analysis of the statute must take into account that it intrudes on an area of traditional state concern.
The brief then cites the Massachusetts DOMA distict court opinion, Massachusetts v. US, presently on appeal.
While the Obama Administration is not defending DOMA - - - itself having decided DOMA is unconstitutional - - - it is noteworthy that at this point, New York is only filing an amicus brief and not filing a complaint of its own unlike Massachusetts.
The New York Attorney General's brief is disconcerting in one respect. It argues,
Because New York has consistently expressed and implemented its commitment to equal treatment for same-sex couples, New York has a strong interest in ensuring that the “protections, responsibilities, rights, obligations, and benefits,” ch. 95, § 2, 2011 N.Y. Laws at __, accorded to them under federal law by virtue of marriage are equal to those accorded to different-sex married couples.
Yet some might argue that New York's "commitment" to equality for same-sex couples has been less than total. The state's highest court, the New York Court of Appeals, reversed lower courts and rejected a claim that limiting marriage to opposite sex couples was unconstitutional in Hernandez v. Robles in 2006. Hernandez v. Robles applied rational basis scrutiny and in much criticized passage reasoned that the legislature could "rationally decide that, for the welfare of children, it is more important to promote stability" and that because heterosexual relationships lead to children and that because "such relationships are all too often casual or temporary," the legislature "could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born" and it could thus " choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other." The court reasoned that this inducement rationale "does not apply with comparable force to same-sex couples" who can become "parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse." Thus,
The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.
Perhaps it is understandable why the New York Attorney General would not want to mention Hernandez v. Robles - - - the brief does not cite it - - - but it does belie New York's "consistent" support for same-sex marriage.
Monday, July 25, 2011
New York's same-sex marriage statute, passed June 24, 2011, became effective Sunday, July 24, amidst a great deal of marrying covered in many press venues, including from the NYT covering events throughout NY, at the traditional honeymoon site of Niagra Falls, the state capitol Albany, and New York City, not to mention a special style section.
The statute was challenged in a complaint (h/t Capitol Confidential) filed today by a group called New Yorkers for Constitutional Freedoms, which describes its mission on its website thusly: "As a Christian ministry, NYCF exists to influence legislation and legislators for the Lord Jesus Christ." (emphasis in original).
The complaint alleges:
In Seeking declaratory and injunctive relief, the Plaintiffs in this case seek to preserve not only marriage as the union of one woman to one man, but also our constitutional liberties by acting as a check on an out-of-control political process that was willing to pass a bill regardless of how many laws and rules it violated.
According to the complaint, the violations included:
- Meetings that violated New York State Open Meetings Laws;
- The suspension of normal Senate voting procedures to prevent Senators who opposed the bill from speaking;
- Failure to follow Senate procedures that require that a bill must be sent to appropriate committees prior to being placed before the full Senate for a vote;
- Unprecedented Senate lock-outs by which lobbyists and the public were denied access to elected representatives;
- The Governor’s violation of the constitutionally mandated three-day review period before the Legislature votes on a bill by unjustifiably issuing a message of necessity;
- Promises (which were fulfilled) by high-profile elected officials and Wall Street financiers to make large campaign contributions to Republican senators who switched their vote from opposing to supporting the Marriage Equality Act;
- A private dinner between the Republican Senators and Governor Cuomo at the Governor’s mansion, with the public and press excluded, aimed at convincing Republican Senators to vote in favor of the bill.
Once notorious as having a legislative process known as "three men in a room" - - - discussed in a 2006 book with that name - - - many observers believe the process has actually improved. However, the state constitution, as the complaint points out, requires "the doors of each house [of the legislature] shall be kept open, except when the public welfare shall require secrecy." NY Const. Article III, section 10. The Senate "lock-out" of "lobbyists" in its "lobby" is argued as violating this provision.
Jimmy Vielkind, reporting for Capitol Confidential, of the Albany Times-Union, provides some reactions to the lawsuit. Vielkind also reports that the NY State Open Meeting law claim has a very small chance of success: "Fun fact: the state legislature has a specific, blanket, exemption from the Open Meetings Law that was enacted into law in 1985, according to Bob Freeman, executive director of the Committee on Open Government at the Department of State." Indeed, the statute's legislative exemption is exceedingly broad.
[image: Bride Embellished by Her Girlfriend, by Henrik Olrik, circa 1859, via]