Tuesday, November 24, 2015

Seventh Circuit Finds Wisconsin's Physician "Admitting Privileges" Abortion Requirement Unconstitutional

In its divided opinion in Planned Parenthood of Wisconsin v. Schimel, the Seventh Circuit affirmed the district judge's grant of a permanent injunction against the 2013 Wisconsin Statute, §253.095(2), that prohibits a physician from performing an abortion unless she or he has admitting privileges at a hospital no more than 30 miles from the clinic in which the abortion is performed.

Writing for the majority, Judge Richard Posner (pictured) concluded that the state statute imposed an undue burden on women seeking abortions and focused on the statute's intent to "strew impediments to abortion" rather than achieve its stated purpose of protecting women's health. 

Posner, Richard 08-10Judge Posner first noted that the statute was signed into law on a Friday and required doctors comply with it by Sunday; this revealed the legislative intent to prevent abortions rather than protect women's health. 

Additionally, Judge Posner concluded that any focus on women's health was spurious.  First, "A woman who experiences complications from an abortion (either while still at the clinic where the abortion was per- formed or at home afterward) will go to the nearest hospital, which will treat her regardless of whether her abortion doc- tor has admitting privileges," citing the brief by the American College of Obstetricians and Gynecologists, the American Medical Association, and the Wisconsin Medical Society.  Second, citing the same brief, Judge Posner concluded that studies show that "complications from an abortion are both rare and rarely dangerous," and contended that this fact "further attenuates the need for abortion doctors to have admitting privileges."  Third, Posner found it troublesome that abortion was singled out for such an admitting privileges law:

Wisconsin appears to be indifferent to complications of any other outpatient procedures, even when they are far more likely to produce complications than abortions are. For example, the rate of complications resulting in hospitalization from colonoscopies done for screening purposes is four times the rate of complications requiring hospitalization from first-trimester abortions.

As to the "continuity of care" justification, Posner noted that while the statute requires the physician to have admitting privileges at a hospital within 30 miles, it does not require the physician to care for that patient at the hospital.

Judge Posner firmly rejected the argument that women in Wisconsin could exercise their constitutional right to an abortion in Chicago - - - across state lines - - - and further found that there was an undue burden for women given that such a trip could be "prohibitively expensive" especially for women living below the poverty line.

In his inimitable style, Judge Posner also provided his views on the Fifth Circuit's decision regarding Texas's HB2 in Whole Woman's Health v. Cole, to which the United States Supreme Court recently granted certiorari.  Judge Posner distinguished the Fifth Circuit's conclusion on the admitting privileges provision, noting that the plaintiffs there did not satisfy the court that the statute would lead to a substantial decline in the availability of abortion.  But Judge Posner also provided his opinion on the Texas statute's ambulatory surgical center requirements - - - notwithstanding the fact that a similar provision was not before the Seventh Circuit - - - noting that

The [Fifth Circuit] court remarked the absence of evidence that the remaining clinics could not expand their capacity to compensate for the closing of more than three-fourths of them,  although one wouldn’t think it necessary to parade evidence that the remaining clinics would find it extremely difficult to quadruple their capacity to provide abortions, which would require, in the face of fierce opposition to abortion clinics and the difficulty of relocating abortion doctors from the closed clinics, extensive physical enlargement to house additional patients and doctors.

Judge Posner also responded to the Fifth Circuit's previous decision on HB2 in Planned Parenthood of Greater Texas v. Abbott that "excoriated" the Seventh Circuit's opinion upholding the preliminary injunction against the Wisconsin statute for engaging in "empirical basis review." Judge Posner wrote:

But a statute that curtails the constitutional right to an abortion, such as the Wisconsin and Texas statutes, cannot survive challenge without evidence that the curtailment is justifiable by reference to the benefits conferred by the statute. The statute may not be irrational, yet may still impose an undue burden—a burden excessive in relation to the aims of the statute and the benefits likely to be conferred by it— and if so it is unconstitutional.

Judge Posner ultimately concluded that "We do not agree with the Fifth Circuit that evidence is irrelevant in a constitutional case concerning abortion."

Judge Daniel Manion's well-organized dissenting opinion disagrees with the majority at almost every turn.  For example, Judge Manion finds that abortion is "subject to less regulatory oversight than almost any area of medicine."  On the subject of state-lines, Judge Manion declares: "Consumers who live near the border of two states tend to shop at the closest destination, regardless of whether they reside in that state." Thus, the courts should consider "distance" rather than "the governor's mansion" to decide whether or not a regulation will constitute an undue burden.  Instead, Wisconsin - - - or the courts - - -need not intervene if "the market fails to provide qualified abortionists within its boundaries." 

For Posner, joined in the opinion by Judge David Hamilton, the overturning of Roe v. Wade is a "steep uphill fight," so persons opposed to abortion "proceed indirectly" in the guise of protecting women's health and thereby pass unconstitutional laws.  Whether or not Judge Posner's predictions will prove correct will be tested as the United States Supreme Court considers Whole Woman's Health this Term.

November 24, 2015 in Abortion, Courts and Judging, Due Process (Substantive), Gender, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0)

Monday, November 2, 2015

Court Hears Oral Arguments in Batson Challenge to Death Sentence

The Court heard oral arguments today in Foster v. Humphrey regarding a challenge to a 1987 conviction and death sentence by an all-white Georgia jury based on  Batson v. Kentucky (1986) applying equal protection principles to peremptory challenges in jury selection.

A seemingly new issue on the case involved whether or not the United States Supreme Court should be hearing the case at all.  While the Court granted certiorari to the Georgia Supreme Court (as we discussed and as the petition requested), the problem is that the Georgia Supreme Court had denied review . . . . for reasons that are unclear.  Was it discretionary? Was that discretion bounded?  Did the Georgia Supreme Court's denial of review for lack of a meritorous claim constitute a decision on the merits?  And even more complexly, did the Georgia state courts have an adequate and independent state ground - - - res judicata - - - under Michigan v. Long (1983)?  (Beth Burton, the attorney for Georgia seemed to concede this was not the case.)  And to add yet another layer of complexity, even if the United States Supreme Court decided it should review the matter, what exactly should it review? As Chief Justice Roberts asked, "In other words, are we addressing just whether there's arguable merit to the claim or are we addressing the claim on its own merits?"

On the merits of the Batson claim, the problem arises from the "smoking gun" of prosecutorial notes singling out the Black potential jurors in the case.  Although Steve Bright, attorney for Foster suggested that there was "an arsenal of smoking guns" here, Justice Scalia suggested that Foster had to "establish [in order ] to reverse the Georgia courts is that the new smoking gun, assuming that all the rest were not enough to demonstrate a Batson violation ­­ the new smoking guns would tip the scale."  Justice Kagan seemed to see it differently, suggesting to Beth Burton, the Georgia Deputy Attorney, that this was a clear Batson violation:

You have a lot of new information here from these files that suggests that what the prosecutors were doing was looking at the African-­American prospective jurors as a group, that they had basically said, we don't want any of these people.  Here is the one we want if we really have to take one.  But that there ­­ all the evidence suggests a kind of singling out, which is the very antithesis of the Batson rule.

Burton initially suggested that the prosecutors' notes highlighting Black jurors was that the prosecutor was preparing for a Batson challenge.  Justice Breyer expressed some incredulity at this based on the fact that prosecutors never previously advanced such a reason.  Justice Breyer also seemingly expressed incredulity at the prosecutors' argument that there were "40 different reasons" - - - other than race - - - meant that one was truly valid, rather than drawing an inference from the sheer number of reasons that they were invalid. 

Justice Kennedy, perhaps the decisive vote, seemed convinced the prosecutors committed a Batson violation: "They've ­­ - - - they've made a mistake - - - ­­ they've made a mistake of - - -­­ in Batson."  But Justice Kennedy was also quite vocal in pressing the attorneys on the procedural issue, which could be an escape hatch for the Court in what could prove to be a difficult case.




November 2, 2015 in Courts and Judging, Criminal Procedure, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Race, Supreme Court (US) | Permalink | Comments (0)

Friday, October 2, 2015

Daily Read: Chief Justice Roberts at Ten

The inimitable Linda Greenhouse in "A Chief Justice Without A Friend" notes that John Roberts is unpopular as he celebrates his decade on the bench.

I can’t think of a chief justice who has been so uniformly vilified by both left and right.

The attacks from the left are logical enough. It’s the fire from the right that merits closer observation than it has generally received. Sure, it’s titillating in a man-bites-dog sort of way. But it’s also revealing of an ideological transformation now underway in how an increasingly influential segment of the conservative elite views the role of courts.

A good quick read, with a link to The Nation special issue - - - The Case Against the Roberts Court - - - which is likewise worth a read.



October 2, 2015 in Courts and Judging, Current Affairs, Supreme Court (US) | Permalink | Comments (0)

Thursday, October 1, 2015

Court Grants Review of Bias of Pennsylvania State Supreme Court Justice in Death Penalty Case

The Court has granted certiorari in Williams v. Pennsylvania on issues of due process and the Eighth Amendment revolving around former Chief Justice of the Pennsylvania Supreme Court Ronald Castille (pictured). 


Castille, who retired from the court when he reached the state mandatory retirement age, was elected in 1993, and retained in elections in 2003 and 2013.  Importantly, before his election to the bench, Castille worked in the district attorney's office for over 20 years, including being twice elected to the District Attorney position; he reportedly claimed to have "sent 45 people to death row."

One of those people on death row is Terrence Williams, the petitioner in Williams v. Pennyslvania.  Williams claims that it was a violation of due process and the Eighth Amendment for Justice Castille to deny the motion to recuse himself from consideration of Williams' petition for post conviction relief.  Williams contends that Castille, as a prosecutor, was personally involved in the case and the decision to seek the death penalty.  Williams' claim, moreover, is based on prosecutorial misconduct. 

Williams relies on Caperton v. Massey (2009) regarding judicial bias. Unlike the situation of Justice Benjamin in Caperton, Castille did not cast a "deciding vote" on the court.  [Nevertheless, Castille's concurring opinion is worth reading for its defensiveness].  Recognizing this distinction, Williams also relies on Atena Life Insurance v. Lavoie (1986), and notes there is a circuit split regarding bias when the biased decided is only one member of a multi-member tribunal.

October 1, 2015 in Courts and Judging, Criminal Procedure, Due Process (Substantive), Supreme Court (US) | Permalink | Comments (0)

Court Grants Certiorari in First Amendment Political Activity by Public Employee Case

The United States Supreme Court has granted certiorari in Heffernan v. Paterson in which the Third Circuit's opinion affirmed summary judgment for the City of Paterson against a First Amendment claim for retaliatory action against police officer Jeffrey Heffernan. 

At issue is whether the mistaken belief of a supervisor that an employee was engaging in political activity.  The police officer was seen picking up a mayoral campaign sign at the request of his "bedridden mother" to "replace a smaller one that had been stolen from her lawn."  Heffernan insisted that he was not involved in the campaign and actually did not support the same candidate as his mother.

The petition for certiorari argues that there is a split in the circuits on this issue.



There seems to be a lack of clarity in the circuits on this issue. 



October 1, 2015 in First Amendment, Speech, Supreme Court (US) | Permalink | Comments (0)

Tuesday, September 29, 2015

Daily Video: Chemerinsky & Volokh Discuss the First Amendment and the Roberts Court

Worth a watch:

A dialogue between ConLawProfs Erwin Chemerinsky & Eugene Volokh on the topic of  "THE FIRST AMENDMENT & THE ROBERTS COURT," moderated by Kelli Sager, and sponsored by The First Amendment Salon, spearheaded by ConLawProf Ron Collins and in association with the Floyd Abrams Institute for Freedom of Expression at Yale Law School.

Chemerinsky and Volokh agree with each other more than might be anticipated.


The First Amendment and the Roberts Court


September 29, 2015 in First Amendment, Supreme Court (US), Teaching Tips, Theory | Permalink | Comments (0)

Monday, September 28, 2015

Ninth Circuit Rejects Franchisers' Constitutional Challenges to Seattle's $15 Minimum Wage

Affirming the district judge's denial of a preliminary injunction, the Ninth Circuit's opinion in International Franchise Ass'n v. City of Seattle rejected all of the constitutional challenges to a Seattle provision that deemed franchises included in the definition of "large employers" and thus subject to the new $15 minimum wage.  Recall that the complaint challenged  the provision under the (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment, the First Amendment, preemption under the Lanham Act (trademarks), and state constitutional provisions.

Photo by Steve Rhodes via

The unanimous Ninth Circuit panel's opinion found that there was not a likelihood of success on any of the constitutional claims, devoting most of its analysis to dormant commerce clause doctrine.  The panel first rejected the argument that the franchise regulation expressly discriminated against franchises as interstate commerce and was thus not "facially neutral." The panel also rejected the argument that the Seattle provision had a discriminatory purpose, noting that while there was some evidence that some persons involved in considering the issue were critical of franchise employment practices, even the strongest evidence of this (in an email), did not show that even this person "intended to burden out-of-state firms or interfere with the wheels of interstate commerce," and "[m]ore importantly, they also do not show that City officials wished to discriminate against out-of- state entities, bolster in-state firms, or burden interstate commerce."  Lastly, the panel rejected the argument that the Seattle provision discriminatory effects, agreeing with the district judge that the United States Supreme Court's decisions on dormant commerce clause can be "difficult to reconcile" and noting:

 We lack Supreme Court authority assessing whether a regulation affecting franchises ipso facto has the effect of discriminating against interstate commerce. Nor has the Supreme Court addressed whether franchises are instrumentalities of interstate commerce that cannot be subjected to disparate regulatory burdens. While regulations that expressly classify based on business structure or impose disparate burdens on franchises present interesting questions, our review is limited to considering whether the district court applied improper legal principles or clearly erred in reviewing the record.

 The footnote to this paragraph includes an extensive citation to lower courts that have considered the issue of whether measures that affect national chains violate the dormant Commerce Clause.  The Ninth Circuit panel concluded:

[T]he evidence that the ordinance will burden interstate commerce is not substantial. It does not show that interstate firms will be excluded from the market, earn less revenue or profit, lose customers, or close or reduce stores. Nor does it show that new franchisees will not enter the market or that franchisors will suffer adverse effects.

The Ninth Circuit panel dispatched the Equal Protection Clause claim much more expeditiously.  The Ninth Circuit applied the lowest form of rational basis scrutiny  - - - citing F.C.C. v. Beach Commc’ns, Inc. (1993) sometimes called "anything goes" rational basis - - - and finding there was a legitimate purpose (without animus) and the law was reasonably related to that purpose.

The court's discussion of the First Amendment claim was similarly brief, not surprising given that the court found the Speech Clause's threshold requirement of "speech"  was absent: "Seattle’s minimum wage ordinance is plainly an economic regulation that does not target speech or expressive conduct."

Additionally, the court agreed with the district judge that there was no preemption under the Lanham Act and no violation of the Washington State Constitution.

The Ninth Circuit panel did disagree with the district judge regarding some minor aspects of the non-likelihood to prevail on the merits preliminary injunction factors.  But on the whole, the opinion is a strong rebuke to the constitutional challenges to the Seattle laws.

Given the stakes (and the attorneys for the franchisers) a petition for certiorari is a distinct possibility.  Meanwhile, as we suggested when the case was filed, for ConLawProfs looking for a good exam review or exam problem, International Franchise Ass'n v. Seattle has much potential.

September 28, 2015 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech, State Constitutional Law, Supreme Court (US), Teaching Tips | Permalink | Comments (0)

Tuesday, September 15, 2015

Daily Video: Justice Breyer on Colbert's "The Late Show"

Friday, August 28, 2015

DC Circuit Finds No First Amendment Violation in Statute Limiting Expression at Supreme Court

In its substantial opinion in Hodge v. Talkin, a panel of the United States Court of Appeals for the DC Circuit upheld the constitutionality of statutory prohibitions of assembly and display of flags or signs on the United States Supreme Court plaza.  

40 USC §6135 provides:

It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.

Hodge image
image of SCOTUS Building included in the opinion

Recall that almost two years ago, district judge Beryl Howell had found the statute unconstitutional in a well-reasoned and extensive opinion.  Judge Howell's ruling prompted the United States Supreme Court to swiftly respond by promulgating a new regulation that seemingly responded to at least some of the more problematical examples that Judge Howell identified such as preschoolers wearing a tee-shirt.  However, the DC Circuit's opinion reverses Judge Howell's decision without reliance on the limitations in the new policy.

Writing for a unanimous panel, Judge Sri Srinivasan notes that the United States Supreme Court's decision in United States v. Grace (1983) left the constitutional status of the plaza, when it decided that the sidewalks surrounding the perimeter of the Supreme Court building are public forums. However, Srinivasan relies on Grace for the distinction between the plaza and the sidewalks to conclude that the plaza is a nonpublic forum:

In marked contrast to the perimeter sidewalks considered in Grace, the Supreme Court plaza distinctively “indicate[s] to the public”—by its materials, design, and demarcation from the surrounding area—that it is very much a “part of the Supreme Court grounds.” [Grace.; Id. at 183.].  The plaza has been described as the opening stage of “a carefully choreographed, climbing path that ultimately ends at the courtroom itself.” Statement Concerning the Supreme Court’s Front Entrance, 2009 J. Sup. Ct. U.S. 831, 831 (2010) (Breyer, J.). For that reason, the Court’s plaza—unlike the surrounding public sidewalks, but like the courthouse it fronts—is a “nonpublic forum,” an area not traditionally kept open for expressive activity by the public. The government retains substantially greater leeway to limit expressive conduct in such an area and to preserve the property for its intended purposes: here, as the actual and symbolic entryway to the nation’s highest court and the judicial business conducted within it.

The opinion devotes attention to architectural description, which it admits in one case has "perhaps" a "degree of romanticism," and also likens the public forum characterization of the Supreme Court plaza to "the treatment of courthouses more generally" and to the controversial Lincoln Center plaza case; interestingly now-Justice Sotomayor was a judge on that panel.

As a nonpublic forum subject to the "lenient" First Amendment standard of reasonableness, the DC Circuit has little difficult in finding that the statute is "reasonable."  Interestingly, the United States Supreme Court's closely divided opinion last Term in Williams-Yulee v. The Florida Bar occupies a prominent role in this reasoning.  The opinion is discussed numerous times to support a conclusion that the government interests put forward here - - -  "the decorum and order befitting courthouses generally and the nation’s highest court in particular" and "the appearance and actuality of a Court whose deliberations are immune to public opinion and invulnerable to public pressure" - - - are both valid and being appropriately served.  Essentially, the DC Circuit's opinion embraces the "judiciary is special" sentiment and correctly notes that this prevailed in the strict scrutiny context of Williams-Yulee, so should suffice under the reasonableness standard.  

The DC Circuit's opinion similarly rejects the overbreadth and vagueness arguments that the statute is unconstitutional.

In essence, the DC Circuit finds the inclusion of the "grounds" in the statute as a place where assembly or "display" of opinion can be prohibited is appropriate line-drawing:

In the end, unless demonstrations are to be freely allowed inside the Supreme Court building itself, a line must be drawn somewhere along the route from the street to the Court’s front entrance. But where? At the front doors themselves? At the edge of the portico? At the bottom of the stairs ascending from the plaza to the portico? Or perhaps somewhere in the middle of the plaza? Among the options, it is fully reasonable for that line to be fixed at the point one leaves the concrete public sidewalk and enters the marble steps to the Court’s plaza, where the “physical and symbolic pathway to [the] chamber begins.” [citation to architectural work]

While the odds are increasingly low that the United States Supreme Court will accept any case on certiorari, the odds seem to approach nil that the Court will exercise its discretion to review this opinion.

August 28, 2015 in First Amendment, Opinion Analysis, Speech, Standing, Supreme Court (US) | Permalink | Comments (0)

Wednesday, August 19, 2015

Divided D.C. Circuit Again Finds Conflict Minerals Disclosure Violates the First Amendment

In its opinion on rehearing, a divided panel of the DC Circuit in National Association of Manufacturers v. Securities and Exchange Comm'n has held that 15 U.S.C. § 78m(p)(1)(A)(ii) & (E), part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, requiring a company to disclose if its products were not "DRC conflict free" violated the First Amendment. 

Rough diamonds from DRC via

In its previous decision more than a year ago in National Association of Manufacturers (NAM),  a majority of the same panel, in an opinion authored by Senior Judge Raymond Randolph and joined by Senior Judge David Sentelle, found the conflict mineral disclosure was a First Amendment violation.  In that 2014 opinion, Judge Srinivasan dissented on the First Amendment issue and contended that this opinion should be held in abeyance "pending the en banc court’s decision" in American Meat Institute v. United States Dep't of Agriculture, regarding a  First Amendment challenge to requiring country of origin labeling (COOL) of meat and meat products.  In the DC Circuit's en banc opinion a year ago, a divided court upheld the constitutionality of the COOL requirements.  The rehearing of the conflict minerals disclosure was prompted by that intervening en banc decision in American Meat Institute (AMI).  The panel majority essentially concluded that its mind was not changed by en banc opinion. [Neither of the senior judges in the panel majority participated in the en banc opinion in AMI].

Central to the controversies in both NAM and AMI is a choice of precedent: should the constitutionality of the labeling requirements be analyzed under  Zauderer v. Office of Disciplinary Counsel  or under the more demanding standard of Central Hudson v. Gas & Electric Corp. v. Public Service Commission of New York.  The DC Circuit's divided en banc opinion in AMI found that Zauderer should be applied.  In this rehearing in NAM, the panel majority (again) found that Zauderer had no applicability, but, as the opinion states, "for a different reason."  However, in sum this panel majority found that Zauderer is limited to "advertisements" at point of sale and seemed to contradict AMI.     

The panel majority did "hedge its bets":

But given the flux and uncertainty of the First Amendment doctrine of commercial speech,15 and the conflict in the circuits regarding the reach of Zauderer,  we think it prudent to add an alternative ground for our decision. It is this. Even if the compelled disclosures here are commercial speech and even if AMI’s view of Zauderer governed the analysis, we still believe that the statute and the regulations violate the First Amendment.

In applying Central Hudson, the panel majority found that the disclosure of conflict minerals has a merely speculative relationship to addressing the interest of the government in ameliorating conflict in the Democratic Republic of the Congo as a source of such minerals.  Instead, the disclosure is akin to political propaganda.  The majority interestingly cites George Orwell's Nineteen Eighty-Four for its passages regarding government redefinition ("WAR IS PEACE"), and concludes that the disclosure is not only not factual but also controversial: it compels "an issuer to confess blood on its hands." 

In dissent, Judge Srinivasan argues that any Scarlet Letter comparison is inapt: "requiring a company to disclose product information in the commercial marketplace is not the same as requiring Hester Prynne to “show [her] scarlet letter in the [town] market- place.”  He asserts that the majority is misreading Zauderer and that the en banc opinion in AMI controls.  Interestingly, he also contends that to the extent the court is requiring "proof" that disclosure of conflict minerals be linked to amelioration of the DRC conflict, the court should be deferring to executive judgments in this commercial context at least as much as the Court did in the political speech context involved in Holder v. Humanitarian Law Project. 

It seems likely that government attorneys are preparing its en banc petition. 

August 19, 2015 in Cases and Case Materials, Courts and Judging, First Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Monday, August 3, 2015

District Judge Holds Idaho's Ag-Gag Law Unconstitutional

Chief Judge B. Lynn Winmill for the United States District of Idaho today held Idaho's so-called "Ag-Gag" law, Idaho Code § 18-7042, unconstitutional in his  opinion in Animal Defense League v. Otter.  Judge Winmill found that the law violated both the First Amendment and the Equal Protection Clause.

The Idaho statute creates a new crime, “interference with agricultural production.” I.C. 18-7042. A person commits the crime of interference with agricultural production if the person knowingly:

(a) is not employed by an agricultural production facility and enters an agricultural production facility by force, threat, misrepresentation or trespass;

(b) obtains records of an agricultural production facility by force, threat, misrepresentation or trespass;

(c) obtains employment with an agricultural production facility by force, threat, or misrepresentation with the intent to cause economic or other injury to the facility's operations . . .

(d) Enters an agricultural production facility that is not open to the public and, without the facility owner's express consent or pursuant to judicial

process or statutory authorization, makes audio or video recordings of the conduct of an agricultural production facility's operations; or

(e) Intentionally causes physical damage or injury to the agricultural production facility's operations, livestock, crops, personnel, equipment, buildings or premises.

Chief Judge Winmill described the legislative history including statements that compared animal rights investigators to “marauding invaders centuries ago who swarmed into foreign territory and destroyed crops to starve foes into submission.”  However, for Winmill, there is a better comparison:

450px-The_Jungle_by_Upton_SinclairThe story of Upton Sinclair provides a clear illustration of how the First Amendment is implicated by the statute. Sinclair, in order to gather material for his novel, The Jungle, misrepresented his identity so he could get a job at a meat-packing plant in Chicago. William A. Bloodworth, Jr., UPTON SINCLAIR 45–48 (1977). Sinclair’s novel, a devastating exposé of the meat-packing industry that revealed the intolerable labor conditions and unsanitary working conditions in the Chicago stockyards in the early 20th century, “sparked an uproar” and led to the passage of the Federal Meat Inspection Act, as well as the Pure Food and Drug Act. National Meat Ass'n v. Harris, 132 S.Ct. 965 (2012). Today, however, Upton Sinclair’s conduct would expose him to criminal prosecution under § 18-7042.

On the First Amendment challenge, the judge found that Idaho's ag-gag statute is content based and merits strict scrutiny.  The opinion revisits an earlier ruling so concluding to reiterate that the United States Supreme Court's opinion in United States v. Alvarez ("the stolen valor case").  Judge Winmill notes that any deception involved in the ag-gag violation would be not be harmful: "the most likely harm that would stem from an undercover investigator using deception to gain access to an agricultural facility would arise, say, from the publication of a story about the facility, and not the misrepresentations made to gain access to the facility."  And "harm caused by the publication of true story is not the type of direct material harm that Alvarez contemplates."  The judge also held that the recording provision is content-based.

Moreover, Judge Winmill implicitly determines that the law is viewpoint-based:

a review of § 18-7042’s legislative history leads to the inevitable conclusion that the law’s primary purpose is to protect agricultural facility owners by, in effect, suppressing speech critical of animal-agriculture practices.

Not surprisingly, the statute does not survive strict scrutiny.  The judge is skeptical that the "property and privacy interests of agricultural production facilities" are sufficiently compelling given that food production is a heavily regulated industry.  Even if the interests were compelling, however, the statute was not narrowly tailored:

Criminal and civil laws already exist that adequately protect those interests without impinging on free-speech rights. It is already illegal to steal documents or to trespass on private property. In addition, laws against fraud and defamation already exist to protect against false statements made to injure or malign an agricultural production facility.

The judge thus concludes that the law restricts more speech than is necessary to achieve its goals.

On the Equal Protection Clause issue, the court's conclusion does not depend on a strict scrutiny analysis.  The judge finds that the ag-gag statute cannot satisfy even rational basis review.  First, Judge Winmill finds that that state's purported interest is not legitimate:

The State argues that agricultural production facilities deserve more protection because agriculture plays such a central role in Idaho’s economy and culture and because animal production facilities are more often targets of undercover investigations. The State’s logic is perverse—in essence the State says that (1) powerful industries deserve more government protection than smaller industries, and (2) the more attention and criticism an industry draws, the more the government should protect that industry from negative publicity or other harms. Protecting the private interests of a powerful industry, which produces the public’s food supply, against public scrutiny is not a legitimate government interest.

 Second, the judge finds that the actual interest is a “a bare congressional desire to harm a politically unpopular group" and thus  "cannot constitute a legitimate governmental interest if equal protection of the laws is to mean anything,” quoting and relying on U. S. Dept. of Agriculture v. Moreno (1973).  "As a result, a purpose to discriminate and silence animal welfare groups in an effort to protect a powerful industry cannot justify the passage" of the statute.

Judge Winmill's decision is ground-breaking.  So-called "ag-gag" laws have proliferated and are being challenged, usually on First Amendment grounds.  Undoubtedly the state will appeal and the Ninth Circuit will have a chance to decide whether  Judge Winmill was correct that the Idaho law is similar to the day labor solicitation prohibition in Arizona's SB1070 that the Ninth Circuit held unconstitutional in Valle Del Sol Inc. v.Whiting.

 UPDATE: Check out this analysis by ConLawProf Shaakirrah Sanders over at casetext and her pre-decision discussion about the case with Idaho Public Radio.

August 3, 2015 in Equal Protection, First Amendment, Food and Drink, Fourteenth Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Wednesday, July 8, 2015

Second Circuit Holds Unwed Mother-Father Immigration Distinction Unconstitutional

In its opinion in Morales-Santana v. Lynch, a unanimous panel of the Second Circuit has held that the differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child violated equal protection as included in the Fifth Amendment's protections. It creates a conflict in the circuits and sets up another trip to the United States Supreme Court on the issue, the last one having resulted in a 4-4 split as discussed below. 

The statutory scheme at issue, the Immigration and Nationality Act of 1952, codified at 8 U.S.C. § 1409(c), was the one in effect when Morales-Santana was born in 1962 outside the US to unwed parents.  His parents married each other in 1970 and he was admitted to the US as a lawful permanent resident in 1975.   In 2000, Morales-Santana was placed in removal proceedings after a conviction for various felonies and applied for withholding based on derivative citizenship from his father.

Derivative citizenship, which occurs at the moment of birth, is bestowed on a child born abroad to an unwed citizen mother and non‐citizen father has citizenship at birth so long as the mother was present in the United States or one of its outlying possessions for a continuous period of at least one year at some point prior to the child’s birth. By contrast, a child born abroad to an unwed citizen father and non‐citizen mother has citizenship at birth only if the father was present in the United States or one of its outlying possessions prior to the child’s birth for a period or periods totaling at least ten years, with at least five of those years occurring after the age of fourteen.  Morales-Santana's father, born in Puerto Rico in 1900, met the one year requirement but not the ten year requirement at the time of his son's birth.  Both parties agreed that had Morales‐Santana’s mother, rather than his father, been a citizen continuously present in Puerto Rico until 20 days prior to her nineteenth birthday, she would have satisfied the requirements to confer derivative citizenship on her child. It is this gender‐based difference in treatment that Morales‐Santana claims violated his father’s right to equal protection.

image via

The Second Circuit's decision that the differential requirements for unwed fathers and mothers is unconstitutional must confront several United States Supreme Court decisions that point in a different direction on the equal protection issue in citizenship statutes, including two recent decisions.  First, the Court  in  Nguyen v. INS (2001) upheld gender discrimination regarding establishment of paternity.  The Second Circuit notes that Morales-Santana complied with the statutory provisions upheld in Nguyen: the child was "legitimated" and thus paternity "acknowledged" when his parents married in 1970.  Second, and more important, is the Court's per curiam affirmance by an "equally divided Court" in Flores-Villar v. United States in 2011. The Ninth Circuit in Flores-Villar  had upheld the differential residency requirement. 

Judge Ray Lohier's for the Second Circuit subjects the statutory scheme to intermediate heightened scrutiny under United States v. Virginia (VMI) (1996), rejecting the government's argument that essentially all citizenship statutes should be subject to mere rational basis review. 

With regard to the government's proffered interests, the court acknowledged that ensuring a sufficient connection between the child and the United States is important, but then states that the differential treatments of mothers and fathers is unrelated to it:  the government

offers no reason, and we see no reason, that unwed fathers need more time than unwed mothers in the United States prior to their child’s birth in order to assimilate the values that the statute seeks to ensure are passed on to citizen children born abroad.

The Second Circuit then recognizes that its "determination conflicts with the decision of the Ninth Circuit in Flores‐Villar, which addressed the same statutory provisions and discussed the same governmental interest in ensuring a connection between child and country."

As to the government's second interest - - - preventing statelessness - - - the court again agrees that it is important, but concludes that this was not a genuine actual interest of the legislation.

Neither the congressional hearings nor the relevant congressional reports concerning the 1940 Act contain any reference to the problem of statelessness for children born abroad. The congressional hearings concerning the 1952 Act are similarly silent about statelessness as a driving concern.

Moreover, even if it had been the government's concern, gender-neutral alternatives - - - which the court notes had been proposed as "far back as 1933" - - - would serve this purpose.  Additionally, the ten year differential, which importantly cannot be cured since it attaches at the moment of birth, is substantial.  Again, this time in a footnote (n.17), the court acknowledges that its decision differs from that of the Ninth Circuit.

The court then finds the paternity provision unconstitutional and rejects the government's proposed remedy that all derivative citizenship be subject to the longer ten year period.

Presumably, the government will seek certiorari.  (And while this case involves a previous statute, the current statute maintains a gender differential).  A petition would have a good chance of being granted given the split in the circuits.  But the Court's 4-4 split in 2011 in Flores-Villar occurred because Justice Kagan was recused; this would not be the case this time.  And perhaps the Obama Administration will chose not to seek review. 

July 8, 2015 in Congressional Authority, Equal Protection, Family, Gender, Opinion Analysis, Recent Cases, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)

Thursday, July 2, 2015

Obergefell, Federalism, and Religion: Constitutional Issues Raised in Alabama and Texas

After the United States Supreme Court's opinion in Obergefell v. Hodges on June 26 declaring that states are required by the Fourteenth Amendment to issue same-sex marriage licenses, a few state officials have not only voiced objections to the decision, but have voiced resistance to complying with the Court's declaration. 

The situations in Alabama and Texas have been the most contentious.


ALABAMA:     Recall that earlier this year when federal District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage, the reaction of  Alabama Supreme Court's controversial Chief Judge Roy Moore was an unusual letter to the Governor objecting to the federal judge's opinion on the basis that federal courts have no power in this Biblical area.  This was followed by an opinion of the Alabama Supreme Court ordering judges not to issue same-sex marriage licenses. The Eleventh Circuit, and then the United States Supreme Court denied a stay of the district judge's opinion.

When the Court took certiorari in Obergefell, however, Judge Granade stayed her order.

However, after the Court decided Obergefell, the Alabama Supreme Court's  "corrected order" stated that because the US Supreme Court rules allow parties 25 days to file a petition for rehearing, the parties in the case - - - including two conservative Alabama organizations - - - were invited to submit briefs on the effect of Obergefell.  Federal District Judge Callie Granade issued a one-page Order on July 1, referenced her earlier stay and then stated:

The United States Supreme Court issued its ruling on June 26, 2015. Obergefell v. Hodges, 576 U.S. ____ (2015). Accordingly, by the language set forth in the [previous] order, the preliminary injunction is now in effect and binding on all members of the Defendant Class.

Thus, the officials of Alabama are subject to a direct order by a federal judge.

 TEXAS:   The Attorney General of Texas, Ken Paxton, who is reportedly facing criminal charges on unrelated matters, issued a six page opinion letter a few days after Obergefell which stressed the individual religious rights of county clerks and their employees, as well as justices of the peace and clergy, regarding their participation in same-sex marriages.  Paxton's opinion was widely reported and concluded that county clerks retain religious freedoms that "may allow" accommodations depending "on the particular facts of each case."  Paxton relied on the First Amendment as well as Texas's Religious Freedom Restoration Act (RFRA), essentially similar to the federal RFRA at issue in the Court's decision in Hobby Lobby. This is not unique:  the possibility of claims by individual public employees in clerk's offices was also raised after New York passed its Marriage Equality Act in 2011 and as that act made clear - - - as is generally understood - - - that religious officers have complete discretion in agreeing or refusing to solemnize marriages. 

The Fifth Circuit issued a very brief opinion on July 1, noting that "both sides now agree" that the  the injunction appealed from, originally issued in early 2014 by federal district judge Orlando Garcia in DeLeon v. Perry [now Abbott],  "is correct in light of Obergefell," the Fifth Circuit ruled that the preliminary injunction is affirmed. 

The Fifth Circuit's opinion makes clear - - - seemingly with state agreement - - - that Texas is bound by Obergefell, but does not mention individual religious accommodations. 

In both the Alabama and Texas situations, there are echoes of resistance to the Supreme Court's opinion in Brown v. Board of Education; The Supremacy Clause and the Court's opinion in Cooper v. Aaron seem to answer the question of whether state officials simply may disagree with the Court's interpretation of the Constitution.  This is true despite the dissenting opinions in Obergefell itself which argued that the Court should leave the resolution of same-sex marriage to individual states.  The question of religious accommodations may be a closer one, but what seems clear is that if there is indeed an individual right to be accommodated - - - again, that itself is unclear - - - it cannot be a right of a government entity.  While Hobby Lobby may have held that corporations have religious freedoms, it is hard to conceive of government entities having free exercise rights in a manner that does not violate the Establishment Clause.

July 2, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0)

Monday, June 29, 2015

Court Grants Certiorari in Fisher v. UT Austin (Redux)

The Court has granted certiorari in Fisher v. University of Texas at Austin, which means the affirmative action in university admissions will be making its second trip to the United States Supreme Court.  Justice Kagan is recused.

Large_university-of-texas_seal_rgb(199-91-18)Recall that in June 2013, the United States Supreme Court reversed the Fifth Circuit's finding in favor of the University (affirming the district judge).  The Court remanded the case for a  "further judicial determination that the admissions process meets strict scrutiny in its implementation."  The  opinion,  authored by Justice Kennedy - - - with only Justice Ginsburg dissenting and Justice Kagan recused - - -specified that the "University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal"  of diversity and the University should receive no judicial deference on that point.

On remand, recall that by a divided opinion, a panel of the Fifth Circuit held that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.

The Court's grant of certiorari might mean that the Court - - - or at least 4 of its members - - - disagrees with the Fifth Circuit's application of narrowly tailored.  Justice Kagan's recusal could be an important factor in any decision.

Fisher graduated from another university in 2012, but the courts have rejected arguments regarding mootness.


June 29, 2015 in Affirmative Action, Courts and Judging, Equal Protection, Federalism, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (0)

Friday, June 26, 2015

Court Decides Fourteenth Amendment Requires States to License Same-Sex Marriage

In a closely-divided opinion, with the majority written by Justice Kennedy, the Court has decided that the Fourteenth Amendment requires states to license same-sex marriages in Obergefell v. Hodges.   The opinion rests on both due process and equal protection grounds.  The majority opinion joined by Ginsburg, Breyer, Sotomayor, and Kagan - - - there are no concurring opinions - - - is less than 30 pages, plus 2 appendices including the citations of same-sex marriage opinions.  Each of the four dissenting Justices - - - Chief Justice Roberts and Justices Scalia, Thomas, and Alito - - - wrote a separate dissenting opinion, with some joinders by other Justices. 

The decision that the Fourteenth Amendment requires states to license same-sex marriages renders the second certified question regarding recognition irrelevant, as the discussion during oral arguments made clear.

Recall that the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans.   There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.



[image Donkey Hotey]

On the due process issue, Kennedy's opinion for the Court concludes that the right to marry is fundamental because:

  • the right to personal choice regarding marriage is inherent in the concept of individual autonomy, relying on Loving and Lawrence;
  • it supports a two-person union unlike any other in its importance to the committed individuals, relying on Grsiwold, Rurner v. Safely, and Lawrence;
  • to safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education, relying on Pierce v. Society of Sisters and Windsor;
  • Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order, relying on Maynard v. Hill (1888).
Regarding equal protection, The Court does not articulate a standard for sexual orientation, but discusses the interlocking nature of the constitutional safeguards, relying on Loving, Zablocki v. Redhail, as well as the Lawrence.
The Court's opinion does address the "religious liberty" conflict of rights argument:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same- sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

In dissent, Chief Justice Roberts - - - who some thought might join the majority and in a rare performance read from his dissent on the bench - - - emphasized that limited nature of judicial review and the power of the Court, concluding that the majority's opinion is an "extraordinary step" and predicting that because it is a decision of "five lawyers" this will make the "dramatic social change that much more difficult to accept."
The majority bases its conclusion that same-sex marriage is a fundamental right on "four principles and traditions": (1) right to person choice in marriage is "inherent in the concept of individual autonomy"; (2) "two-person union unlike any other in its importance to the committed individuals"; (3) marriage safeguards children and families; (4) marriage is a keystone to our social order. - See more at: http://live.scotusblog.com/Event/Live_blog_of_opinions__June_26_2015#sthash.OLg4SIRd.dpuf

June 26, 2015 in Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Opinion Analysis, Supreme Court (US) | Permalink | Comments (1)

Monday, June 22, 2015

Supreme Court Decides Raisin USDA Program is an Unconstitutional Taking

The United States Supreme Court's opinion in Horne v. Department of Agriculture (USDA)
decisively declares the USDA's "California Raisin Marketing Order," under which a percentage of a grower's crop must be "put in reserve" is unconstitutional under the Fifth Amendment's Takings Clause. 

This regulatory program, under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq., regarding raisins, is similar to other USDA programs and thus could have wide application. 

Sunmaid-recipe-booksBy resisting the program on behalf of "farmers," the Hornes have become "outlaws" or heroes of sorts. This is the second time that the Hornes have been to the Supreme Court: Recall that in a brief opinion in June 2013, the Court reversed the Ninth Circuit and held that the Hornes did state a claim for a taking. 

Today, again reversing the Ninth Circuit, the Court held that a taking did occur and that the Hornes were entitled to just compensation under the Fifth Amendment.  Only Justice Sotomayor dissented from this conclusion, but Justices Breyer, Ginsburg, and Kagan did not join Chief Justice Roberts's opinion for the Court regarding the determination of "just compensation."

Relying on a Magna Carta provision regarding corn as well as on colonial history, Chief Justice Roberts's opinion for the Court concludes that the Fifth Amendment's Taking Clause applies with equal force to personal property as to real property.  Any distinction between real and personal property might be relevant in a regulatory takings case, but the Court stressed that this is a "clear physical taking": "Actual raisins are transferred from the growers to the Government."  (Whether this happens in a physical seizure was debated in the contentious oral argument and made another appearance in a to-and-fro between the Court's opinion and Sotomayor's dissent).  For the Court, growers thus lose "the entire 'bundle' of property rights in the appropriated raisins."  Dissenting, Justice Sotomayor disagrees that it is the entire bundle and thus disputes this conclusion.  Given this physicality, it is irrelevant for the Court that the USDA could achieve the same ends through a regulatory taking (such as prohibiting the sale):

A physi­cal taking of raisins and a regulatory limit on production may have the same economic impact on a grower. The Constitution, however, is concerned with means as well as ends. The Government has broad powers, but the means it uses to achieve its ends must be “consist[ent] with the letter and spirit of the constitution.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).

The Court also rejected the notion that because the USDA program reserved a contingent interest in the raisins for the growers that this relieved the government duty to pay just compensation. 

The Court also found that the USDA mandate to reserve raisins as a "condition" for engaging in interstate commerce effected a per se taking.  In reaching this conclusion, the Court rejected the Ninth Circuit's observation that the growers could grow other crops or use the grapes differently - - -

“Let them sell wine” is probably not much more comfort­ing to the raisin growers than similar retorts have been to others throughout history.

The Court also reached this conclusion by distinguishing other takings cases and other products. Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984) is inapplicable because "raisins are not dangerous pesticides; they are a healthy snack."  Leonard & Leonard v. Earle, 279 U. S. 392 (1929) is likewise inapposite because "Raisins are not like oysters: they are private property— the fruit of the growers’ labor—not “public things" such as oysters that belonged to the state under state law.

The majority [corrected] of the Court determined that the "just compensation" owed to the Hornes is the fair market value of the raisins, the subject of the fine imposed by the USDA: $483,843.53.   Justice Breyer (and Ginsburg and Kagan), disagreeing with this conclusion, would remand the matter for a determination.  It is not that Justice Breyer disagrees that this was the amount of the fine, but that he disputes that this is the actual fair market value absent the taking.  In other words, the raisin reserve program operated to increase the cost of raisins.  Thus, without the program benefit, the raisins in reserve may have been worth much less that the amount fined, or even, Justice Breyer suggests, nothing at all.  He contends that the question of evaluation was not properly briefed before the Court.  For the Chief Justice, however, "This case, in litigation for more than a decade, has gone on long enough."

[image: 1916 California Sun Maid Raisin Recipe Book via]

June 22, 2015 in Fifth Amendment, Opinion Analysis, Supreme Court (US), Taxing Clause | Permalink | Comments (2)

Thursday, June 18, 2015

Sign Ordinance Violates First Amendment: Court Decides Reed v. Town of Gilbert

A unanimous Court, albeit with separate opinions, concluded that the extensive municipal signage regulations violated the First Amendment in Reed v. Town of Gilbert.

Recall from oral arguments that the town's regulations generally required a permit to erect a sign, with nineteen different exemptions including “Temporary Directional Signs Relating to Qualifying Event.”  The exemption for these temporary directional signs further specifies that such signs "shall be no greater than 6 feet in height and 6 square feet in area,”and “shall only be displayed up to 12 hours before, during and 1 hour after the qualifying event ends.” Although the challenge involves a church sign, this was largely irrelevant. Instead the content at issue is the sign’s directional nature, if indeed "directions" is a matter of content. In a divided opinion the Ninth Circuit upheld the town Gilbert signregulation as content neutral.

Reversing the Ninth Circuit, Justice Thomas, writing for the Court, concluded that the Sign Code was content-based and did not survive strict scrutiny.  The Sign Code provision is content-based because, simply put, to determine if a sign is a "Temporary Directional Sign" one must determine whether the sign "conveys the message of directing the public" to an event.  It does not matter, Thomas writes for the Court, that the content may seem neutral:

A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech. *** In other words, an innocuous justification cannot transform a facially content- based law into one that is content neutral.

Once the Court decided there the regulation was subject to strict scrutiny, there was little doubt that the town would not be able to satisfy the standard.  Thomas assumed that the proffered governments interests of aesthetics and traffic safety were compelling, but quickly determined that that the manner in which they were being served was far from narrowly tailored. Instead, the regulations were "hopelessly underinclusive."

The concurring opinions take on the issue raised in oral argument about the constitutionality of any town's attempt to regulate signage.  Justice Kagan's concurring opinion, joined by Justice Ginsburg and by Breyer (who also has a separate concurring opinion) - - - but not by Justice Alito, who has his own brief concurrence, joined by Kennedy and Sotomayor (who also join the Thomas's opinion for the Court)- - - argues that strict scrutiny is not appropriate for all sign ordinances.  Kagan states:

Although the majority insists that applying strict scrutiny to all such ordinances is “essential” to protecting First Amendment freedoms,  I find it challenging to understand why that is so. This Court’s decisions articulate two important and related reasons for subjecting content-based speech regulations to the most exacting standard of review. The first is “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” McCullen v. Coakley. The second is to ensure that the government has not regulated speech “based on hostility—or favoritism— towards the underlying message expressed.” R. A. V. v. St. Paul (1992). Yet the subject-matter exemptions included in many sign ordinances do not implicate those concerns. Allowing residents, say, to install a light bulb over “name and address” signs but no others does not distort the marketplace of ideas. Nor does that different treatment give rise to an inference of impermissible government motive.

She instead argues that the "we may do well to relax our guard so that 'entirely reasonable' laws imperiled by strict scrutiny can survive."  But it was evident that even the concurring Justices  did not view the Town of Gilbert's signage regulations as entirely reasonable.

June 18, 2015 in First Amendment, Fourteenth Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)

Court Decides Specialty License Plate is Government Speech in Sons of Confederate Veterans License Plate

In a closely - - - and interestingly - - - divided opinion today in Walker v. Texas Sons of Confederate Veterans, the Court's majority decided that Texas's specialty license plate program is government speech and therefore rejected the First Amendment challenge to the denial of a specialty license plate requested by the Texas Sons of Confederate Veterans.

Justice Breyer delivered the Court's opinion, joined by four Justices, Ginsburg, Sotomayor, Kagan, and - - - Thomas.  The dissenting opinion by Justice Alito was joined by Chief Justice Roberts, Scalia, and Kennedy.  And while Justice Breyer has become known for his appendices, this opinion has a simple one: the image of the rejected Sons of Confederate Veterans plate.  Meanwhile, Alito's dissenting opinion has a more extensive appendix; it includes the images of 58 specialty plates that Texas has approved.

No-pix-license-plate-021413As was evident in the oral arguments, and is frequently the case in First Amendment speech controversies, there was a definite choice of doctrine at stake.  Recall that the Fifth Circuit's divided opinion, reversing the district judge, found that the denial violated the First Amendment as impermissible viewpoint and content discrimination.  The Court today not only rejected that view, but it rejected the applicability of any forum analysis.  Instead, the Court applied the doctrine of government speech articulated in the Court's unanimous Pleasant Grove City v. Summum (2009) finding that there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas.  This was raised at numerous points in the oral arguments and echoes the opinion of Judge Jerry Smith who had dissented in the Fifth Circuit's divided opinion.  Breyer did note that there were some aspects of Summum that were not exactly parallel, such as the permanence of the monuments in Summun, the opinion states that this was important because the public parks in Summun are traditional public forums, which is not the case for license plates.

And as for that other and most famous license plate case, Wooley v. Maynard (1977), the Court's majority opinion distinguished Walker because "compelled private speech is not at issue."  And indeed, if there is any compulsion of conveying ideological messages to be protected against here, it is that of the state being compelled to "include a Confederate battle flag on its specialty license plates."

Justice Alito's dissenting opinion has at its base a common-sense disagreement.  Noting the proliferation of specialty plates, supported by his Appendix, he asks:

As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games— Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents? And when a car zipped by with a plate that reads “NASCAR – 24 Jeff Gordon,” would you think that Gordon (born in California, raised in Indiana, resides in North Carolina) is the official favorite of the State government?

Thus, he argues that what Texas has done by selling space on its license plates is to create a "limited public forum."

Walker v. Sons of Confederate Veterans could have wide-ranging effect. Does it give unfettered discretion to governments to decide license plate matters given that it is now government speech?  Consider that the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; that the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; and that a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld. 

Additionally, recent controversies about advertising on public transport, as in New York, the Sixth Circuit and Ninth Circuit,  could be reconceptualized after Walker v. Sons of Confederate Veterans.

June 18, 2015 in Courts and Judging, First Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (2)

Monday, June 15, 2015

Does Immigration Marriage Case Foreshadow Same-Sex Marriage Case?

In United States Supreme Court's fragmented and closely divided decision in Kerry v. Din, the majority rejected the procedural due process argument of a naturalized American citizen to an explanation of the reasons supporting a denial of a visa to her noncitizen husband.  Justice Scalia, writing for the plurality and joined by Thomas and Chief Justice Roberts, concluded that she had no cognizable liberty interest attributable to her marriage.  Justice Kennedy, joined by Alito, would not reach the liberty interest issue because the process here was all that was due.  Justice Breyer, dissenting, and joined by Ginsburg, Sotomayor, and Kagan, would affirm the Ninth Circuit and find that she had a cognizable liberty interest and that more process was due in the form of a more precise and factual explanation.

So what might this mean for Obergefell?  Most obviously, the dissenting opinion by Breyer, and joined by Ginsburg, Sotomayor, and Kagan, articulates an expansive liberty interest in marriage under the Due Process Clause that could be easily imported into Obergefell.  On Justice Kennedy's concurrence, joined by Alito, the clear signal is that Justice Scalia's refusal to recognize a liberty interest in marriage is not one to which they are subscribing - - - in this case.  Given that Justice Kennedy, as author of the Court's opinions Windsor, Lawrence, and Romer v. Evans, is being closely watched as potential author of an opinion in favor of Obergefell, there is nothing in Din that would mitigate that judgment. As for the plurality, Justice Scalia's derogation of substantive due process has a familiar ring that might be echoed in his opinion in Obergefell, with an emphasis on history.  While Justice Thomas is widely expected to agree with Scalia's position, does the Chief Justice's joining of Scalia's opinion in Kerry v. Din signal a disapproval of recognizing any liberty interest in marriage?  Perhaps.  But perhaps not.  Consider this:

Unlike the States in Loving v. Virginia, 388 U. S. 1 (1967), Zablocki v. Redhail, 434 U. S. 374 (1978), and Turner v. Safley, 482 U. S. 78 (1987), the Federal Govern­ment here has not attempted to forbid a marriage. Although Din and the dissent borrow language from those cases invoking a fundamental right to marriage, they both implicitly concede that no such right has been infringed in this case. Din relies on the “associational interests in marriage that necessarily are protected by the right to marry,” and that are “presuppose[d]” by later cases estab­lishing a right to marital privacy.

Indeed, under this view, as the Court made clear in Zablocki, there must be a "direct and substantial" interference with marriage in order for there to be a liberty interest.  The Court in Zablocki distinguished Califano v. Jobst, 434 U.S. 47 (1977) - - - which the Court in Din does not cite - - - which found no constitutional infirmity with altering social security benefits upon marriage.  In short, the marriage was not "forbidden," it was simply subject to certain regulations in another the complex social security scheme, not unlike the complex immigration scheme.

So for those who might attempt to predict the various positions of the Justices in Obergefell based on Kerry v. Din, there is certainly much "play."

Henri Rousseau, "The Wedding Party," circa 1905, via

June 15, 2015 in Courts and Judging, Current Affairs, Due Process (Substantive), Family, Gender, Recent Cases, Sexual Orientation, Sexuality, Supreme Court (US), Theory | Permalink | Comments (0)

The Supreme Court on Marriage, Procedural Due Process, Terrorism, and Immigration: Kerry v. Din

The Court today issued its closely divided opinion in Kerry v. DinOn this 800th anniversary of Magna Carta, both the plurality opinion by Justice Scalia and the dissenting opinion by Justice Breyer referenced the great charter's protection of what the Constitution's Fifth Amendment termed "due process of law." In Din, the due process rights of a citizen who obtained preferred immigration status for her spouse are at stake. Certainly the case is important in the immigration context, but how important might it be as a harbinger of the Court's impending decision in the consolidated same-sex marriage cases, Obergefell v. Hodges, argued in late April?  What Kerry v. Din might say about Obergefell is discussed here.

Charles Hawthorne, "Young man and woman in a dark, moody landscape," 1915, via 

In Kerry v. Din, a naturalized citizen, petitioned to have her husband, Berashk, classified as an “immediate relative” entitled to priority immigration status, and although this was approved, Berashk’s visa application was denied under §1182(a)(3)(B), which excludes aliens who have engaged in “[t]errorist activities,” but the consular officer provided no further information. Unable to obtain a more detailed explanation for Berashk’s visa denial, Din filed a complaint in federal court which was dismissed.  The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa. It further held that the Government deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation of its reasons.

In the plurality opinion joined by Chief Justice Roberts and Justice Thomas, Justice Scalia has harsh words for Din's claim of any right of "life, liberty, or property" to which due process would attach.  It is "absurd" and nothing in the caselaw "establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection."  He characterizes her right as one to live in the United States with one's spouse, and concludes that such a right fails the Washington v. Glucksberg test requiring that any implicit right be "deeply rooted in this Nation's history and tradition."  Indeed, he argues that the history is exactly the opposite and discusses laws that mandated women "take the nationality of her husband on marriage."  While noting that modern " equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order," nevertheless, he concludes that "this all-too-recent practice repudiates any contention that Din’s asserted liberty interest is 'deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.'"

Justice Kennedy, joined by Justice Alito, firmly rejects Justice Scalia's conclusion: "Today’s disposition should not be interpreted as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse." Instead, Kennedy concludes that the "Court need not decide that issue," for "even assuming she has such an interest, the Government satisfied due process when it notified Din’s husband that his visa was denied under the immigration statute's terrorism bar."  For Kennedy and Alito, the citation of the statute seemingly satisfies all the process that is due.

Dissenting, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, argues that there is a liberty interest flowing from the Due Process Clause itself and from the statutory scheme establishing immigration preferences.  In his critique of the plurality opinion, Breyer reminds readers that it "is not controlling."  He discusses a number of cases in which the Court has recognized liberty interests, perhaps most compellingly Goss v. Lopez (1975), involving students' interest in attending school and not being suspended, and which the plurality opinion seeks to distinguish. Regarding the "process due," Breyer notes that a statement of the reasons for a government action is an essential part of due process and one that a recitation of the statute in this case cannot satisfy given that it contains "dozens" of reasons.  Moreover, the government offered no factual basis. He argues:

The generality of the statutory provision cited and the lack of factual support mean that here, the reason given is analogous to telling a criminal defendant only that he is accused of “breaking the law”; telling a property owner only that he cannot build because environmental rules forbid it; or telling a driver only that police pulled him over because he violated traffic laws. As such, the reason given cannot serve its procedural purpose. It does not permit Ms. Din to assess the correctness of the State Department’s conclusion; it does not permit her to determine what kinds of facts she might provide in response; and it does not permit her to learn whether, or what kind of, defenses might be available. In short, any “reason” that Ms. Din received is not constitutionally adequate.

Thus, the dissenters would recognize both the liberty interest of a spouse in her partner's visa denial and that procedural due process requires something more than the recital of a statute; Kennedy and Alito find that the statutory referral is sufficient process; and the plurality finds that there is no liberty interest of a spouse in her partner's visa denial.  It's a fragmented set of conclusions and its predictive value for the same-sex marriage cases raises some interesting possibilities.

June 15, 2015 in Due Process (Substantive), Opinion Analysis, Procedural Due Process, Supreme Court (US), Travel | Permalink | Comments (0)