Wednesday, December 17, 2014

Supreme Court Denies Stay in Arizona's DACA Driver License Injunction

The Supreme Court today denied an application for a stay from Arizona in Brewer v. Arizona Dream Act Coalition.  The Order states that Justices Scalia, Thomas, and Alito would grant the application for the stay.

Recall that the Ninth Circuit entered a preliminary injunction on behalf of the plaintiffs who challenged an Executive Order by Arizona Governor Jan Brewer prohibiting recipients of the federal program called the “Deferred Action for Childhood Arrivals” (DACA) from obtaining driver’s licenses by using Employment Authorization Documents as proof of their authorized presence in the United States.  The Ninth Circuit panel of judges held that even under a rational basis standard of equal protection review, there was no  legitimate state interest that was rationally related to defendants’ decision to treat DACA recipients disparately from other noncitizens who were permitted to use their Employment Authorization Documents as proof of their authorized presence in the United States when applying for driver’s licenses.

800px-Arizona_license_plate_2008_series

The denial of a stay should not be surprising at this preliminary stage, but the litigation is sure to continue.

[image via]

December 17, 2014 in Equal Protection, Federalism, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Saturday, December 6, 2014

Supreme Court to Hear First Amendment Challenge to Specialty License Plate Denial

The United States Supreme Court has granted certiorari in Walker v. Texas Sons of Confederate Veterans involving a First Amendment challenge to the denial of a specialty license plate that would display the confederate flag to the Sons of Confederate Veterans.

The Fifth Circuit's divided panel opinion, authored by Judge Edward Pardo, reversed the district judge's grant of summary judgment to Texas and concluded that the denial of a specialty license plate bearing a Confederate flag symbol constituted impermissible viewpoint discrimination under the First Amendment.  The majority concluded that a "reasonable observer" of the license plate would believe it was the speech of the automobile's owner and not the government, and thus Texas cannot constitutionally allow some viewpoints to be expressed on the license plates but not others.  Dissenting, Judge Jerry Smith contended that the doctrine of government speech articulated in the Court's unanimous Pleasant Grove City v. Summum (2009) controls: there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas.

Confed symbol
symbol on proposed license plate via

The constitutional status of license plates - - - whether they are specialty, vanity, or state-mandated - - - has been fertile ground for First Amendment litigation.  As we've discussed, the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; 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.

What might be called the First Amendment doctrine of license plates, following from the classic First Amendment case of Wooley v. Maynard (1977) involving compelled speech has become more complex with the introduction of specialty and vanity license plates.  Such plates do produce revenue for states, but also provoke First Amendment concerns and expensive litigation.  In granting certorari, the Court has the opportunity to settle the matter.  Or perhaps the Court will further complicate the issue of expressive license plates on our cars.

 

December 6, 2014 in First Amendment, Fourteenth Amendment, Race, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, November 13, 2014

Fifth Circuit Denies En Banc Review in Fisher Remand

The Fifth Circuit has denied en banc review by a vote of 15-5 in its  Order in  Fisher v. University of Texas at Austin.  

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

Ribbon_internalRecall also that the United States Supreme Court had reversed the Fifth Circuit's  original finding in favor of the University (affirming the district judge) and  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.

Judge Emilio Garza, the  Senior Judge who dissented from the panel opinion also wrote a very brief dissenting opinion from en banc review, which was joined by Judges Jones, Smith, Clement, and Owen.  Judge Garza contends that while the "panel majority dutifully bows" to the United States Supreme Court's requirements in Fisher, it "then fails to conduct the strict scrutiny analysis" the opinion requires "thus returning to the deferential models" of Regents of University of California v. Bakke and Grutter v. Bollinger.

A petition for writ of certiorari is certain; the grant of that petition is less certain.

November 13, 2014 in Affirmative Action, Equal Protection, Federalism, Fourteenth Amendment, Opinion Analysis, Race, Recent Cases, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Court Vacates Stay of Kansas Same-Sex Marriage Injunction

The Court has issued an Order vacating the temporary stay issued by Justice Sotomayor on Monday of the preliminary injunction of Judge Daniel Crabtree entered last week in Marie v. Moser regarding Kansas' same-sex marriage ban.

As we noted, Judge Crabtree stayed the injunction himself, reasoning that although the injunction seemed firmly established given Tenth Circuit precedent, Kansas raised many jurisdiction and justiciability issues.

The Order from the Court notes that "Justice Scalia and Justice Thomas would grant the application for stay," but there is no accompanying opinion.

November 13, 2014 in Courts and Judging, Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, November 10, 2014

Sixth Circuit Allows Constitutional Challenge of "Hosing" Detainees to Proceed

In its opinion in Williams v. City of Cleveland, a panel of the Sixth Circuit faulted the district judge for over-extending Florence v. Board of Chosen Freeholders of County of Burlington (NJ) to include a challenge to a practice by Cleveland that "compelled pretrial detainees who were being processed into the facility to undress in the presence of other detainees and to have their naked genitals sprayed with delousing solution from a pressurized metal canister."

Recall that the United States Supreme Court in Florence upheld the authority of jail authorities to strip search a person accused of a minor crime without individualized suspicion under the Fourth Amendment.   As we stated when the decision was rendered in April 2012, "Writing for the 5-4 majority, Kennedy's relatively brief opinion could be summed up in a single word: deference."

Yet that deference was not total and today's holding from the Sixth Circuit elaborates on the limits of Florence.  The complaint in Williams was stayed pending resolution of Florence, and after Florence, the plaintiffs sought to amend their complaint to distinguish Florence.  The district judge denied the motion to amend as "futile" because there was no real constitutional issue raised by the manner of the delousing.

725px-Pieter_de_Hooch_018
Pieter de Hooch "A Mother's Duty" (Mother delousing child's hair) circa 1660  via

Reversing, the unanimous panel of the Sixth Circuit noted that Florence "took pains to emphasize that its holding applied only to the blanket policy before it, which required a visual strip search and a compulsory shower with self-applied delousing solution."  This means, according to the court, that the particular method of conducting a search must still be reasonable, and that this reasonableness is weighed against the level of intrusion.

As the panel described the allegations, the "hose treatment"  included the plaintiffs being "ordered to crouch naked on the floor with several strangers in the room while corrections officers" directed a pressurized hose of delousing liquid aimed at their intimate body parts.  The incident also included for one plaintiff being hosed off by another detainee and for another plaintiff, the delousing liquid "penetrating her anus."   For the panel, "simply spraying the detainee with a hose as if she was an object or an animal," is problematical because

it is not obvious that it would be impracticably onerous for the jail to permit self-application of the delousing solution while reserving the “hose treatment” for instances where individual detainees misapply or refuse to properly apply the provided solution.

However, the panel noted that in "the final analysis" "the jail may have had good reasons for conducting these procedures in the particular manner in which it did."  However, "that is a matter for resolution either at trial or on summary judgment, not on the pleadings."

Thus, the case will proceed at the trial level.

November 10, 2014 in Criminal Procedure, Fourth Amendment, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Sotomayor Stays Kansas Federal Judge's Same Sex Marriage Injunction

In an Order late today, Justice Sotomayor stayed the preliminary injunction of Judge Daniel Crabtree entered last week in Marie v. Moser regarding Kansas' same-sex marriage ban.

As we noted, Judge Crabtree stayed the injunction himself, reasoning that although the injunction seemed firmly established given Tenth Circuit precedent, Kansas raised many jurisdiction and justiciability issues. 

As is usual, there is no reasoning supporting the Supreme Court stay.  Here's the text of Justice Sotomayor's opinion:

UPON CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the preliminary injunction entered by the United State District Court for the District of Kansas on November 4, 2014, is hereby stayed pending receipt of a response, due on or before Tuesday, November 11, 2014, by 5 p.m. ET, and further order of the undersigned or of the Court.

Perhaps we can expect another Order from Justice Sotomayor late on Tuesday?

 Justice Sonia Sotomayor by Donkey Hotey
Caricature of Justice Sonia Sotomayor by Donkey Hotey via

 

 UPDATE here.

November 10, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 22, 2014

Federal Judge in Puerto Rico Dismisses Challenge to Same-Sex Marriage Ban

In his  opinion in Conde-Vidal v. Garcia-Padilla, United States District Judge for the District of Puerto Rico Juan Perez-Gimenez dismissed the constitutional challenge to Puerto Rico's law defining marriage as "man and woman" and refusing recognition to marriages "between persons of the same sex or transexuals."

In large part, Judge Perez-Gimenez relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question."  For Judge Perez-Gimenez, this dismissal remains binding precedent for several reasons.  Judge Perez-Gimenez finds that Baker remains good law despite the "nebulous 'doctrinal developments" since 1972.  He rejects the precedential value of Windsor v. United States in this regard: "Windsor does not - - - and cannot - - - change things."  He acknowledges and cites authority to the contrary, but finds it unpersuasive.  He specifically rejects the relevance of the Supreme Court's denial of certiorari from circuit decisions finding same-sex marriage bans unconstitutional in light of the more solid precedent of Baker v. Nelson. 

1280px-Puerto_Rico_departamentos_1886
Judge Perez-Gimenez also grounds his adherence to Baker v. Nelson on the First Circuit's opinion in Massachusetts v. HHS, finding DOMA unconstitutional.  The First Circuit's discussion of Baker v. Nelson is somewhat unclear, but Judge Perez-Gimenez rejects the argument that they are dicta and further reasons even if the statements are dicta, "they would remain persuasive authority, and as such, further support the Court's independent conclusions about, and the impact of subsequent decisions on, Baker."

Judge Perez-Gimenez articulates a perspective of judicial restraint, articulating deference to the democtratic institutions of Puerto Rico and adherence to stare decisis.  But in the opinion's conclusion, he makes his own views clear:

Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law. Traditional marriage is “exclusively [an] opposite-sex institution . . . inextricably linked to procreation and biological kinship,” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). Traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.

Those are the well-tested, well-proven principles on which we have relied for centuries. The question now is whether judicial “wisdom” may contrive methods by which those solid principles can be circumvented or even discarded.

A clear majority of courts have struck down statutes that affirm opposite-gender marriage only. In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage. And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity? Is “minimal marriage”, where “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties” the blueprint for their design? *** It would seem so, if we follow the plaintiffs’ logic, that the fundamental right to marriage is based on “the constitutional liberty to select the partner of one’s choice.”

Undoubtedly, this issue is on its way to the First Circuit.  The states in the First Circuit - - - Rhode Island, Massachusetts, New Hampshire, and Maine - - - all have same-sex marriage without federal court decisions, so this decision from the District of Puerto Rico will provide the First Circuit the opportunity to reconsider Baker v. Nelson and the applicability of its DOMA decision, Massachusetts v. Gill.

Although perhaps the challengers to the same-sex and "transsexual" marriages might seek to have the issue decided by the Puerto Rican Supreme Court.

October 22, 2014 in Due Process (Substantive), Equal Protection, Family, Opinion Analysis, Recent Cases, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Friday, October 17, 2014

Arizona Federal Judge Holds State's Same-Sex Marriage Ban Unconstitutional

Judge John Sedwick's  opinion in Connolly v. Jeanes is a mere four pages, noting that the requirement of  a "lengthy and detailed opinion" is now obviated because as the district court is bound by the Ninth Circuit's opinion in Latta v. Otter.  As to a stay, an "appeal to the Ninth Circuit would be futile" and given the Supreme Court's denial of petitions for writs of certiorari, it is "also clear" that the "High Court will turn a deaf ear on any request for relief from the Ninth Circuit's decision." 

Despite the recent activity by Justice Kennedy including the stay and modified stay and vacated stay of the Ninth Circuit's decision, the Attorney General Tom Horne (pictured) agreed in a statement (video here) and cited his ethical duties under Rule 11 and not to "waste the taxpayers' money."  He issued a  letter to the clerks "effective immediately." 

TomHorne_PenOfcDesk-3

 

 

October 17, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

Supreme Court Vacates Fifth Circuit Stay of Texas HB 2 Injunction

The controversial Texas law limiting abortion access known as HB 2, which began law despite a well-publicized filibuster by state senator Wendy Davis, is now effectively enjoined  - - - in part - - -by the United States Supreme Court in its Order in Whole Woman's Health Center v. Lakey.

Here's the entire text:

The application to vacate stay of final judgment pending appeal presented to Justice Scalia and by him referred to the court is granted in part and denied in part. The Court of Appeals’ stay order with reference to the district court’s order enjoining the admitting-privileges requirement as applied to the McAllen and El Paso clinics is vacated. The Court of Appeals’ stay order with reference to the district court’s order enjoining the ambulatory surgical center requirement is vacated. The application is denied in all other respects.

Justice Scalia, Justice Thomas, and Justice Alito would deny the application in its entirety.

To recap: the United States Supreme Court is vacating the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.Recall also that this is an as-applied challenge.  A panel of the Fifth Circuit in March upheld the admitting privileges provision after it had issued a stay of Judge Yeakel's decision enjoining the provision as unconstitutional.

October 15, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Gender, Medical Decisions, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

Alaska Same-Sex Marriage: Court Declares Same-Sex Marriage Ban Unconstitutional

On Sunday afternoon before a Monday federal holiday, federal district judge Timothy Burgess of the District of Alaska issued an  opinion in Hamby v. Parnell  and immediately enjoined officials of the state of Alaska from enforcing either the statute or state constitutional provision barring same-sex marriages. 

800px-AlaskaMap1895Judge Burgess' 25 page opinion predictably relied upon the Ninth Circuit's decision in Latta v. Otter concluding that the same-sex marriage bans of Idaho and Nevada violated the Equal Protection Clause and using the Circuit's heightened scrutiny standard for sexual orientation.  Judge Burgess also found that the Alaska laws violated the Due Process Clause because they infringe on the "fundamental right to choose whom to marry." 

In the Due Process discussion,  Judge Burgess has an interesting invocation of originalism:

In Lawrence  [v. Texas],  the critical mistake identified by the Supreme Court in its earlier reasoning [in Bowers v. Hardwick]  is the same error made by Defendants in this case: in the desire to narrowly define the rights protected by the Fourteenth Amendment, they “fail[] to appreciate the extent of the liberty at stake.”

Our forefathers wrote the Bill of Rights hundreds of years ago and could not have predicted “the components of liberty in its manifold possibilities” as we see today. As the Supreme Court articulately explained, “those who drew and ratified the Due Process Clause[]...knew times can blind us to certain truths and later generations can see that laws once necessary and proper in fact only serve to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” The Plaintiffs in this case do not ask the Court to recognize an entirely new fundamental right to same-sex marriage; rather, Plaintiffs wish to participate in the existing liberty granted to other couples to make a deeply personal choice about a private family matter.

 Alaska has filed an Emergency Motion for Stay Pending Appeal, arguing in part that there is a "reasonable likelihood the Ninth Circuit will rehear Latta en banc and thus vacate the panel's decision."  This is largely based on the Ninth Circuit's application of heightened scrutiny in the panel opinion. 

But recall that this heightened scrutiny is based on SmithKline Beecham Corp. v. Abbott Labsdecided 10 months ago and which was denied a rehearing en banc. 

And recall also that while Justice Kennedy of the United States Supreme Court granted a stay of Latta, he later clarified that the stay was only as to Idaho and not Nevada (although the Ninth Circuit's heightened scrutiny standard was applied to the laws of both states), and the stay vacated on Friday.

Additionally, Alaska argues that "conditions compelling Supreme Court review of this issue could easily develop very soon."  Recall that the Supreme Court denied certiorari of the decisions from three circuits finding same-sex marriage bans unconstitutional.  As Alaska argues:

The Sixth Circuit heard argument in early August regarding cases14 from four states (Michigan, Kentucky, Tennessee, and Ohio) and could issue a decision at any time, and the Fifth Circuit has expedited argument of Louisiana and Texas cases and could issue a decision by end of this year. Accordingly, circumstances are likely to develop in which the Supreme Court is virtually obligated to review the issue.

Yet given the lack of endurance of previous stays, there is little reason to believe Alaska would be considered a different case.

 

October 14, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, October 10, 2014

Update: Justice Kennedy Kennedy Vacates Previous Stay Orders on Ninth Circuit Same-Sex Marriage Case

Updated:

On Monday, the United States Supreme Court denied certiorari to the Fourth, Seventh, and Tenth Circuits that had held that an array of states' same-sex marriage ban statutes were unconstitutional.

On Tuesday, the Ninth Circuit issued its opinion holding that the same-sex marriage bans in Idaho and Nevada were unconstitutional, on substantially similiar reasoning to the cases from the other circuits.

On Wednesday, in a brief Order, Justice Anthony Kennedy, as Circuit Court Justice, entered a stay of the mandate of the Ninth Circuit opinion in Otter v. Lata. Here's the text of Kennedy's Order:

UPON CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the mandate of the United States Court of Appeals for the Ninth Circuit, case Nos. 12-17668, 14-35420 & 14-35421, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Thursday, October 9, 2014, by 5 p.m.

While the Ninth Circuit applies intermediate scrutiny in the equal protection analysis, this does not seem to be sufficient to warrant a stay. 

What does Justice Kennedy have in mind?

kennedy
Caricature of Justice Kennedy by Donkey Hotey via

UPDATE: Later on Wednesday, Justice Kennedy issued a second Order clarifying that the stay applies only to Idaho and not to Nevada.

Here's the text of that Order:

UPON FURTHER CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the portion of the order issued on this date entering a stay of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 12-17668 is hereby vacated. The stay entered with respect to the Ninth Circuit’s mandate in case Nos. 14-35420 & 14-35421, shall remain in effect pending further order of the undersigned or of the Court.

 And on Friday, October 10, Justice Kennedy issued an Order denying the stay and vacating his previous orders.  Here's the text:

The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated.

 

October 10, 2014 in Courts and Judging, Current Affairs, Family, Fourteenth Amendment, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 8, 2014

Supreme Court Justice Anthony Kennedy Stays Mandate of Ninth Circuit in Same-Sex Marriage Case

On Monday, the United States Supreme Court denied certiorari to the Fourth, Seventh, and Tenth Circuits that had held that an array of states' same-sex marriage ban statutes were unconstitutional.

On Tuesday, the Ninth Circuit issued its opinion holding that the same-sex marriage bans in Idaho and Nevada were unconstitutional, on substantially similiar reasoning to the cases from the other circuits.

On Wednesday, in a brief Order, Justice Anthony Kennedy, as Circuit Court Justice, entered a stay of the mandate of the Ninth Circuit opinion in Otter v. Lata. Here's the text of Kennedy's Order:

UPON CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the mandate of the United States Court of Appeals for the Ninth Circuit, case Nos. 12-17668, 14-35420 & 14-35421, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Thursday, October 9, 2014, by 5 p.m.

While the Ninth Circuit applies intermediate scrutiny in the equal protection analysis, this does not seem to be sufficient to warrant a stay. 

What does Justice Kennedy have in mind?

kennedy
Caricature of Justice Kennedy by Donkey Hotey via

UPDATE: Later on Wednesday, Justice Kennedy issued a second Order clarifying that the stay applies only to Idaho and not to Nevada.

Here's the text of that Order:

UPON FURTHER CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the portion of the order issued on this date entering a stay of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 12-17668 is hereby vacated. The stay entered with respect to the Ninth Circuit’s mandate in case Nos. 14-35420 & 14-35421, shall remain in effect pending further order of the undersigned or of the Court.

 Further updated on October 10 here.

October 8, 2014 in Courts and Judging, Equal Protection, Family, Fourteenth Amendment, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 7, 2014

Oral Arguments on Prisoner's Religious Beard at Supreme Court

In today's oral argument in Holt (Muhammad) v. Hobbs, the Court considered the question on which it granted certiorari: whether the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one—half—inch beard in accordance with his religious beliefs.

ConLawProf's own Steven Schwinn has penned a terrific preview for the ABA.  The case occurs under the RLUIPA statute, of course, rather than the First Amendment, because RLUIPA provides greater protections as we previously explained, in the same manner that the RFRA statute at issue in last Term's Burwell v. Hobby Lobby Stores, Inc.

482px-Head_of_a_bearded_man,_India,_Madhya_Pradesh_or_Rajasthan,_c._9th-10th_century_CE,_sandstone,_HAAIf the oral arguments are any indication, the result in Holt/Muhammad will be the same as in Hobby Lobby, but much less divisive and contentious. 

As I argue over in The Guardian, the issue of grooming raises larger issues, which the Justices mostly skirted,  but the Justices clearly struggled with the argument that Arkansas had a compelling governmental interest served by prohibiting short beards.  This discussion was marked by the vast majority of other states that allow prisoners to have beards (40) and the fact that Arkansas allows a medical exemption.  Counsel for the Arkansas Department of Corrections explained that Arkansas had a different system of incarceration than other states (preferring barracks) and had an interesting doctrinal explanation for accommodating the medical condition but not the religious one:

The doctor's prescriptions invariably are get a clipper shave.  And that brings a second point up, Your Honor, is that the policy's rationale was follow doctor's orders.  And we think that is fundamentally of a different nature than a religious reason, because the Eighth Amendment law of deliberate indifference and the like admits a no countervailing security interest that come into play. Our policy is we follow doctor's orders and that's the end of the matter. 

There was some discussion of the slippery slope variety, with Justice Kagan asking:

So whether it's a full beard or whether it's long hair or whether it's a turban, there will be some ability to say, even though it's just teeny tiny, there is some increase in prison security that results from disallowing this practice. And I guess I want to know, and this really fits in with several of the other questions that have been asked here, is how do we think about that question in the context of this statute?

Or as Chief Justice Roberts stated it:

But I ­­ mean, you're really just making your case too easy. I mean, one of the difficult issues in a case like this is where to draw the line. And you just say, well, we want to draw the line at half inch because that lets us win.

And the next day someone's going to be here with one inch. And maybe it'll be you. And then, you know, two inches.

It seems to me you can't avoid the legal difficulty just by saying, all we want is half an inch.

As ConLawProf Douglas Laycock appointed to argue on behalf of Holt/Muhammad, noted, Holt/Muhammad

made a pro se decision to limit his request. The Court expressly limited the question presented. So this case is only about half an inch.

That Holt/Mohammad's case is before the Court is one of statistical improbability.  Kali Borkoski over at SCOTUSBlog has a terrific audio slideshow that demonstrates some of the difficulties of litigating RLUIPA claims.  In Holt/Muhammad, the petition for certiorari was pro se from a negative Eighth Circuit decision; the vast majority of the 20,000 or so pro se petitions filed in federal courts each year do not reach the appellate level.  Interestingly, the Eighth Circuit specifically ruled that the dismissal of the case "does not count as a “strike” for purposes of 28 U.S.C. § 1915(g)" the Prison Litigation Reform Act which limits pro se prison petitions to "three strikes."  Later in the Term in Coleman-Bey v. Tollefson, the Court will be considering a construction of the three strikes limit; but perhaps Holt/Muhammad points to a larger issue with the limitation.  

[image via]

October 7, 2014 in Free Exercise Clause, Gender, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, October 6, 2014

Supreme Court Denies Certiorari to Same-Sex Marriage Petitions

In its Order today, the Court denied certiorari to a raft of cases, including the cases seeking review of opinions in which appellate courts found bans on same-sex marriage to be unconstitutional.

These cases are from three circuits:

From the Seventh Circuit:  Bogan v. Baskin and  Walker v. Wolf,  decided in September, regarding the same-sex marriage bans in Indiana and Wisconsin;

From the Tenth Circuit,  Herbert v. Kitchen, the opinion issued in June regarding Utah's prohibition and Smith v. Bishop, extending Herbert's reasoning to the ban in Oklahoma; and

From the Fourth Circuit's Bostic v. Rainey, regarding Virginia's prohibition there were three petitions, McQuigg v. Bostic, Schaefer v. Bostic, and Rainey v. Bostic.  The Fourth Circuit has already issued a Mandate, lifting the stay. 

 

 

 

 

 

October 6, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Gender, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, October 2, 2014

Supreme Court to Hear First Amendment Challenge to Sign Ordinance

The United States Supreme Court has granted certiorari in Reed v. Town of Gilbert, Arizona, regarding a First Amendment challenge to the town's regulation of outdoor signs.

The town requires 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.” 

There were other exemptions for ideological signs and for political (campaign) signs with different requirements.

Reed and Good News Community Church challenged the town's temporary directional sign regulation as violating the First Amendment.  

800px-Direction_sign_for_Free_Culture_Research_Conference_2010The Ninth Circuit upheld the regulatory scheme in a divided opinion, the second time the court had heard the controversy.  The majority reiterated its earlier conclusion that the regulation was content-neutral: it "does not single out certain content for differential treatment, and in enforcing the provision an officer must merely note the content-neutral elements of who is speaking through the sign and whether and when an event is occurring." 

It held that "Supreme Court Precedent" affirmed its "definition of content-neutral" and in so doing the Ninth Circuit's February 2013 opinion relied in large part on Hill v. Colorado (2000).  The Ninth Circuit also relied on Hill's holding that the buffer zone at issue was constitutional and that "not all types of noncommercial speech need be treated the same;" this reliance may be less sturdy after the Court's decision last term in McCullen v. Coakley, in which the Court held a buffer zone unconstitutional.  

In considering whether the differing restrictions between types of noncommercial speech in the various exemptions were “adequately justified without reference to the content of the regulated speech," the court concluded they were.  Moreover, the court found that the town was entitled to deference in its choices as to size and duration of the signs.

Dissenting, Judge Paul Watford argues that the town's scheme is content-based and unconstitutional.  Here's the gist of his reasoning:

The content-based distinctions [the town of ] Gilbert has drawn are impermissible unless it can identify some non-communicative aspect of the signs at issue to justify this differential treatment.  Gilbert has merely offered, as support for the sign ordinance as a whole, its interest in enhancing traffic safety and aesthetics. Traffic safety and aesthetics are certainly important interests. But to sustain the distinctions it has drawn, Gilbert must explain why (for example) a 20-square-foot sign displayed indefinitely at a particular location poses an acceptable threat to traffic safety and aesthetics if it bears an ideological message, but would pose an unacceptable threat if the sign’s message instead invited people to attend Sunday church services.

Gilbert has not offered any such explanation, and I doubt it could come up with one if it tried. What we are left with, then, is Gilbert’s apparent determination that “ideological” and “political” speech is categorically more valuable, and therefore entitled to greater protection from regulation, than speech promoting events sponsored by non-profit organizations. That is precisely the value judgment that the First and Fourteenth Amendments forbid Gilbert to make.

[citations omitted].

 Oral argument promises to be a lively one full of hypotheticals; it has not yet been scheduled. 

October 2, 2014 in First Amendment, Fourteenth Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, August 28, 2014

The Difficulty of Discussing the Facebook Threats Going to Supreme Court in Elonis v. United States

As we noted in June, the United States Supreme Court has granted certiorari in Elonis v. United States, a case regarding a criminal conviction for threats against his estranged wife and others posted on Facebook.   We've had to amend that post for reasons explained below.

As presented in the certiorari question, the issue is:

Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

However, in its Order, the Court stated:

In addition to the question presented by the petition, the parties are directed to brief and argue the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."

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Thus, Elonis will be a case in which the statutory interpretation and the First Amendment are intertwined.

The Third Circuit panel opinion unanimously upheld the conviction of Anthony Elonis under 18 U. S. C. §875(c), rejecting his contention that the statute requires subjective proof of his intent to threaten, rather than objective proof.  There is a split in circuits on whether subjective intent is required to make the statute constitutional after the Court's decision in Virginia v. Black in which the Court declared a Virginia statute provided that cross-burning was "prima facie evidence" of a intent to intimidate. 

The doctrine of "true threats" has long been a fraught one.  As in other oft-called categorical exclusions from the First Amendment, the operative legal query is definitional: if the speech is a "true threat," the speech is not protected; if it is not a "true threat," then it is protected speech.  The Court's grant of certiorari may - - - or may not - - - indicate that some Justices found that Elonis's facebook postings failed to rise to the level of true threats.  Undoubtedly, however, this case will be watched not only by those interested in "free speech on the internet" but also by those interested in "intimate partner violence."

At times, this inquiry becomes grammatical.  For example, the Third Circuit found that a particular posting that Elonis claimed was conditional and therefore could not be a "true threat," could have reasonably been found by a jury to be a true threat. 

The Third Circuit extensively quotes the facebook postings of Elonis.

But for bloggers, requoting this language can run afoul of the policies of internet providers, servers, and search engines regarding profanity and "adult content."   It's an interesting illustration of the limits of the First Amendment by the state action doctrine.  It leaves the blogger with several choices, including trying to use dashes or asteriks in words or attempting to link more specifically to the opinion for the quoted passages (although links are also covered by most "adult content" policies, albeit more difficult to detect).

It will be interesting to see what language choices are made by the advocates, the Court, and those reporting on the opinion.

 

August 28, 2014 in Current Affairs, First Amendment, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2014

Supreme Court Issues Stay in Virginia Same-Sex Marriage Case

In Bostic v. Schaefer in late July, a divided panel of the Fourth Circuit held that Virginia's ban on same-sex marriage was unconstitutional and in mid-August, a majority of the panel refused,  without analysis, to grant a stay of its opinion.

Today, as widely anticipated, the United States Supreme Court did grant a stay in its Order in McQuigg v. Bostic.  Here's the entire text:

The application for stay presented to The Chief Justice and by him referred to the Court is granted, and the issuance of the mandate of the United States Court of Appeals for the Fourth Circuit in case No. 14-1167, is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

The stay shall remain in effect "in the event the petition for certiorari is granted," an event many believe is quite likely.

 

August 20, 2014 in Courts and Judging, Family, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 13, 2014

Daily Read: Kende on Thomas and Korematsu

In his essay Justice Clarence Thomas's Korematsu Problem, forthcoming in Harvard Journal of Racial & Ethnic Justice and available on ssrn, ConLawProf Mark Kende suggests that Justice Thomas actually endorses one of the most reviled Supreme Court opinions, Korematsu v. United States (1944), in which the Court upheld the internment of citizens of Japanese ancestry even as it noted that race-based classifications deserved strict scrutiny.

 

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Caricature of Justice Thomas by Donkey Hotey via

 Kende focuses on Thomas's dissents in Hamdi v. Rumsfeld (2004) and Johnson v. California (2005) to argue that Thomas's views are consistent with a Korematsu-approving jurisprudence in which government power to enact security concerns trumps color-blindness principles.

 Worth a read as we consider executive power and questions of nationality and race in the news.

August 13, 2014 in Courts and Judging, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, August 11, 2014

CFP: Feminist Judgments

Inspired by the successful - - - and fun! - - - Feminist Judgments in the UK, the American version of Feminist Judgments is seeking contributors.  [update: And be sure to check out the terrific Canadian version here, which was the inspiration for the UK version].

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Here's the call:

The U.S. Feminist Judgments Project seeks contributors of revised opinions and commentary for an edited collection entitled Feminist Judgments: Rewritten Opinions of the United States Supreme Court.  This edited volume is a collaborative project among feminist law professors and others to rewrite, from a feminist perspective, key Supreme Court decisions relevant to gender issues.  Editors Kathy Stanchi, Linda Berger and Bridget Crawford seek prospective authors for 20 to 25 rewritten Supreme Court opinions covering a range of topics including reproductive rights, equal protection, the state’s use of criminal power, privacy, the family, women’s political participation, Title IX, employment discrimination and substantive due process.

The editors also seek authors for commentaries of 1,500 to 2,500 words to put into context each of the rewritten cases.

The U.S. Feminist Judgments project was inspired by the successful collection and publication in Britain of FeministJudgments: From Theory to Practice, edited by Rosemary Hunter, Clare McGlynn, and Erika Rackley. This volume, which included feminist versions of twenty-three key British decisions from the Court of Appeal and House of Lords, was published in 2010 and has been very well received.

Like the sister project in Britain, the U.S. Feminist Judgments Project endeavors to pioneer “a new form of critical socio-legal scholarship” that illustrates how cases could have been decided differently had afeminist method been employed. We believe that U.S. Supreme Court law is ripe for this kind of scholarly treatment.

Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten opinions should fill out an application here:


Applicants may indicate their preferences among the list of cases.  Applicants also may suggest other cases for rewriting.  The tentative cases were chosen with the input and advice of an Advisory Panel of distinguished U.S. scholars including Kathryn Abrams, Katharine Bartlett, Devon Carbado, Mary Anne Case, Erwin Chemerinsky, April Cherry, Kimberlé Crenshaw, Martha Fineman, Margaret Johnson, Sonia Katyal, Nancy Leong, Catharine MacKinnon, Rachel Moran, Melissa Murray, Angela Onwuachi-Willig, Nancy Polikoff, Dorothy Roberts, Dan Rodriguez, Susan Ross, Vicki Schultz, Dean Spade, Robin West, and Verna Williams.

August 11, 2014 in Gender, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Daily Read: Lithwick on Breyer

Over at SLATE, Dahlia Lithwick argues that Justice Breyer is an underappreciated feminist:

Breyer is without a doubt the most ardent believer in government, systems, democracy, and in the American public. . . .

But Breyer is also a feminist . . . [and] Breyer, like David Souter and John Paul Stevens and William J. Brennan and many men before him, has been a staunch defender of women’s rights and freedoms for a long time, often without getting too much credit, especially from the ladies.

Worth a read. 

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Caricature of Justice Breyer by Donkey Hotey via

August 11, 2014 in Courts and Judging, Gender, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)