Wednesday, April 22, 2015
The issue of a federal regulatory scheme of raisins returned to the United States Supreme Court for another round of oral arguments today in Horne v. Department of Agriculture.
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 regulatory taking. The claim arises from a regulatory program under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq., that mandates that a certain percentage of a raisins be put in "reserve" each year. By resisting the program, the Hornes have become "outlaws" or heroes of sorts.
While the Hornes continue to argue that the program constitutes a taking, in today's oral argument Michael McConnell representing the Hornes pressed the issue of the taking as a per se one rather than a regulatory one because the Department of Agriculture takes possession and title of the raisins.
The Deputy Solicitor General, Edwin Kneedler, rejected the Chief Justice's humorous suggestion that government would "come up with the truck and you get the shovels and you take their raisins, probably in the dark of night," by insisting that under the Order, the producer submits the raisins to the handler who divides them into two categories. The reserve raisins are separated for later sale, the proceeds of which are pooled and distributed back to the producers. However, Kneedler did admit that one can assume that the government committee takes title in order to sell the raisins.
There were also questions of even if there was a taking whether any "just compensation" was due. In other words, what if the government taking resulted in no loss - - - or even a benefit - - - to the Hornes?
But the Justices seemed bothered by the program, with Justice Scalia expressing this discomfort most blatantly: "Central planning was thought to work very well in 1937, and Russia tried it for a long time." Perhaps the program - - - and the 8 or 10 or maybe more programs that are similar - - - is simply a relic of another time.
However, as Justice Kagan made clear, whether the program was sensible or ridiculous was not for the Court to decide and, she implied, irrelevant to the taking analysis.
Thursday, April 16, 2015
The United States Supreme Court is set to hear oral arguments on April 28 in the same-sex marriage cases, now styled as Obergefell v. Hodges, a consolidated appeal from the Sixth Circuit’s decision in DeBoer v. Snyder, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee that had held the same-sex marriage bans unconstitutional, and creating a circuit split.
Recall that the Court certified two questions:
1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The case has attracted what seems to be a record number of amicus briefs. As we discussed last year, previous top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92. [Note that the "Obamacare" Affordable Care Act cases including 2012's consolidated cases of NFIB v. Sebelius attracted 136 amicus briefs.]
The count for Obergefell v. Hodges stands at 139. 147 [updated: 17 April 2015]
76 amicus briefs support the Petitioners, who contend that same-sex marriage bans are unconstitutional.
58 66 amicus briefs support the Respondents, who contend that same-sex marriage bans are constitutional.
05 amicus briefs support neither party (but as described below, generally support Respondents).
According to the Rules of the Supreme Court of the United States, Rule 37, an amicus curiae brief’s purpose is to bring to the attention of the Court “relevant matter not already brought to its attention by the parties.” While such a brief “may be of considerable help to the Court,” an “amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”
An impressive number of the Amicus Briefs are authored or signed by law professors. Other Amici include academics in other fields, academic institutions or programs, governmental entities or persons, organizations, and individuals, often in combination. Some of these have been previously involved in same-sex marriage or sexuality issues and others less obviously so, with a number being religious organizations. Several of these briefs have been profiled in the press; all are linked on the Supreme Court’s website and on SCOTUSBlog.
Here is a quick - - - if lengthy - - - summary of the Amici and their arguments, organized by party being supported and within that, by identity of Amici, beginning with briefs having substantial law professor involvement, then government parties or persons, then non-legal academics, followed by organizations including religious groups, and finally by those offering individual perspectives. [Late additions appear below]Special thanks to City University of New York (CUNY) School of Law Class of 2016 students, Aliya Shain & AnnaJames Wipfler, for excellent research.
April 16, 2015 in Courts and Judging, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Foreign Affairs, Fourteenth Amendment, Free Exercise Clause, Full Faith and Credit Clause, Fundamental Rights, Gender, History, Interpretation, Privacy, Profiles in Con Law Teaching, Race, Recent Cases, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US), Theory | Permalink | Comments (3) | TrackBack (0)
Wednesday, April 15, 2015
In a case with similarities to Town of Greece, NY v. Galloway decided by the United States Supreme Court last year, the Supreme Court of Canada today rendered its judgment in Mouvement laïque québécois v. Saguenay (City) finding that a prayer at a municipal council meeting violated the constitution.
S regularly attended the public meetings of the municipal council of the City of Saguenay [Quebec]. At the start of each meeting, the mayor would recite a prayer after making the sign of the cross while saying [translation] “in the name of the Father, the Son and the Holy Spirit”. The prayer also ended with the sign of the cross and the same words. Other councillors and City officials would cross themselves at the beginning and end of the prayer as well. In one of the council chambers, there was a Sacred Heart statue fitted with a red electric votive light. In another, there was a crucifix hanging on the wall. S, who considers himself an atheist, felt uncomfortable with this display, which he considered religious, and asked the mayor to stop the practice. When the mayor refused, S complained to the Commission des droits de la personne et des droits de la jeunesse. He argued that his freedom of conscience and religion was being infringed, contrary to ss. 3 and 10 of the Quebec Charter, and asked that the recitation of the prayer cease and that all religious symbols be removed from council chambers.
The original Tribunal found the practice unconstitutional, but the Court of Appeal held that the prayer "expressed universal values" and "could not be identified with any particular religion." It also reasoned that the "religious symbols were works of art that were devoid of religious connotation and did not affect the state’s neutrality." According to the Court of Appeal, S had not been discriminated against on the ground of freedom of conscience and religion; any interference with S's beliefs was "trivial or insubstantial."
While some of the issues before the Supreme Court of Canada involved procedural ones regarding the appeal, the Court was clear that the municipality's practice was unconstitutional. Similar to an analysis under the US Constitution's First Amendment, the Supreme Court of Canada grappled with issues such as hostility to religion and the "slippery slope" of other religious practices:
The prayer recited by the municipal council in breach of the state’s duty of neutrality resulted in a distinction, exclusion and preference based on religion — that is, based on S’s sincere atheism — which, in combination with the circumstances in which the prayer was recited, turned the meetings into a preferential space for people with theistic beliefs. The latter could participate in municipal democracy in an environment favourable to the expression of their beliefs. Although non‑believers could also participate, the price for doing so was isolation, exclusion and stigmatization. This impaired S’s right to exercise his freedom of conscience and religion. The attempt at accommodation provided for in the by‑law, namely giving those who preferred not to attend the recitation of the prayer the time they needed to re‑enter the council chamber, had the effect of exacerbating the discrimination. The Tribunal’s findings to the effect that the interference with S’s freedom of conscience and religion was more than trivial or insubstantial were supported by solid evidence, and deference is owed to the Tribunal’s assessment of the effect of the prayer on S’s freedom of conscience and religion.
Barring the municipal council from reciting the prayer would not amount to giving atheism and agnosticism prevalence over religious beliefs. There is a distinction between unbelief and true neutrality. True neutrality presupposes abstention, but it does not amount to a stand favouring one view over another. Moreover, it has not been established in this case that the prayer is non‑denominational. The Tribunal’s findings of fact instead tend toward the opposite result. Be that as it may, the respondents themselves conceded at the hearing that the prayer is nonetheless a religious practice. Even if it is said to be inclusive, it may nevertheless exclude non-believers. As for the proposed analogy to the prayer recited by the Speaker of the House of Commons, in the absence of evidence concerning that prayer, it would be inappropriate to use it to support a finding that the City’s prayer is valid. Finally, the reference to the supremacy of God in the preamble to the Canadian Charter cannot lead to an interpretation of freedom of conscience and religion that authorizes the state to consciously profess a theistic faith. The preamble articulates the political theory on which the Charter’s protections are based. The express provisions of the Canadian Charter and of the Quebec Charter, such as those regarding freedom of conscience and religion, must be given a generous and expansive interpretation. This is necessary to ensure that those to whom these charters apply enjoy the full benefit of the rights and freedoms, and that the purpose of the charters is attained.
The Court explicitly linked the state's duty of neutrality - - - akin to the First Amendment's (anti-)Establishment Clause - - - to the maintenance of a free and democratic society. "This pursuit requires the state to encourage everyone to participate freely in public life regardless of their beliefs." This principle may have special resonance when one considers the largely French (and Catholic) Quebec as compared to the other largely English (and Protestant) other provinces.
Unlike the United States Supreme Court's opinion in Town of Greece, the Supreme Court of Canada's judgment is not closely divided; only one Justice writes separately to discuss some of the procedural issues, but otherwise concurs. For US ConLawProfs, City of Saguenay is well worth a comparative read.
Monday, March 30, 2015
In a summary order today, the United States Supreme Court listed among the cases denied certiorari the controversial "Cinco de Mayo" case, Dariano v. Morgan Hill Unified School District.
The original controversy began with a claim by students that their constitutional rights were violated when school officials banned their American flag clothing during a Cinco de Mayo celebration. The school officials regulated American flag clothing "in [the] context of ongoing racial tension and gang violence within the school, and after a near-violent altercation had erupted during the prior Cinco de Mayo over the display of an American flag.” The district judge rejected the students' First Amendment and Equal Protection claims. The Ninth Circuit affirmed, and later denied en banc review, over a dissent, and issued an amended panel opinion which added several paragraphs of analysis.
The application of the classic Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) was predictable, but the amended opinion also discussed the “heckler’s veto,” a concept that is in some senses embedded in Tinker's "disruption" standard.
However, with the denial of certiorari, this particular controversy - - - which had often been expressed as allowing a school district to ban the American flag - - - has apparently been decided, at least in the context of this particular school for a particular holiday on a particular year.
However, as the opinion of the Ninth Circuit as amended noted, situations involving displays of the Confederate flag in the school context have been frequently litigated. And this Term, the Court is considering a Confederate flag outside the school context in the "license plate" case just argued last week, Walker v. Texas Sons of Confederate Veterans.
Monday, March 23, 2015
The Court heard oral arguments today in Walker v. Texas Sons of Confederate Veterans involving a First Amendment challenge to the denial of a specialty license plate requested by the Texas Sons of Confederate Veterans.
As we noted when certiorari was granted, the Fifth Circuit's divided opinion, reversing the district judge, found that the denial violated the First Amendment as impermissible viewpoint and content discrimination. License plate schemes have been well-litigated: 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.
First, there is the issue of whether the specialty license plate had become a traditional public forum. Justice Kennedy seemingly tended toward this view, noting - - - twice - - - that no one goes to parks anymore and so these license plates may be a new public forum for a new era.
Less specifically articulated was whether if there was a limited public forum in the license plates this could have any meaning at all because there were no real standards. Justice Ginsburg quickly asked the Texas Solicitor General, defending the constitutionality of the state scheme, whether it wasn't "nebulous." The number of specialty license plates approved and the very few disapproved was noted several times, again making it seem as if any designation was not at all clear.
The notion of government speech was raised at numerous points, echoing the opinion of Fifth Circuit Judge Jerry Smith who had dissented and 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.
Yet Justice Sotomayor suggested that this might be "hybrid speech," asking counsel for the Texas Sons of Confederate Veterans whether this might not be the "reverse" of Wooley v. Maynard (1977): why should the State be compelled to put something on its license plates that it disapproves?
That the state might be seen as endorsing problematical messages surfaced repeatedly, including this discussion with counsel for the Texas Sons of Confederate Veterans:
JUSTICE GINSBURG: Suppose suppose the message the the applicant said, we want this design, and the design is a swastika. Is that speech that does does the the whoever is in charge of it of the license plate, do they have to accept - - -
MR. GEORGE: I don't believe the State can discriminate against the people who want to have that design - - -
JUSTICE GINSBURG: So they could have the swastika. And suppose somebody else says, I want to have "Jihad" on my license plate. That's okay, too?
MR. GEORGE: Vegan?
JUSTICE GINSBURG: Jihad.
MR. GEORGE: Jihad. Jihad on the license plate? Can be there is obviously a court of appeal a district court from Ohio in which "Infidels" was held to be the State
JUSTICE KENNEDY: What is your answer in this case as to Justice Ginsburg's hypothetical? Yes or no, must the State put those symbols or messages on the plates at the request of the citizen? Yes or no?
MR. GEORGE: Yes.
This prospect seemed worrisome. But seemingly equally worrisome was the prospect of absolute government discretion manifested by the recurring hypothetical of a government allowing "Vote Republican" but not "Vote Democratic" on the specialty plates, a situation that is arguably consistent with Summum's interpretation of government speech. Perhaps Sotomayor's suggested "hybrid speech" may be a compromise. Or less likely, the Court could further clarify public forum and limited (designated) public forum doctrine.
Friday, March 20, 2015
In a brief filed today in the First Circuit in Conde-Vidal v. Armendariz, the Solicitor General of the Commonwealth of Puerto Rico essentially sided with the appellants and conceded its same-sex marriage ban is unconstitutional.
Recall that several months ago, 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."
The challengers appealed to the First Circuit and the Commonwealth's brief "concedes that Baker’s rationale that federal courts lack jurisdiction to entertain these claims for lack of a substantial federal question can no longer be deemed good law."
It is not usual for the Executive Branch of the Commonwealth of Puerto Rico to refuse to defend the constitutionality of legally-enacted statutes. It is even less usual to adopt a somewhat different position at the appellate level than the one espoused before the lower court. But this is not a usual case and neither the law nor common sense requires us to treat it as such.
In a constitutional democracy there are some rights that have been reserved to the People directly and which no government may infringe, regardless of individual or personal views on the matter. “Our obligation [like this Court’s] is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).
Article 68 of the Civil Code of Puerto Rico excludes LGBT couples from the legal entitlements and rights attendant to civil marriage. Thus, the Commonwealth of Puerto Rico acknowledges that the statute in controversy raises substantial constitutional questions anent the constitutional guarantees of equal protection of the laws and substantive due process.
Because Puerto Rico’s marriage ban impermissibly burdens Plaintiffs ́ rights to the equal protection of the laws and the fundamental right to marry, we have decided to cease defending its constitutionality based on an independent assessment about its validity under the current state of the law. However, “i[t] is emphatically the province and duty of the judicial department to say what the law is.” Windsor, 133 S.Ct. 2675, at 2688 (quoting Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1802)), and, since the District Court entered judgment in this case, it is this particular Court’s duty to review the legal conclusions there reached so that they may be brought up to date in accordance with newer developments in this important area of constitutional law.
If History has taught us anything, it is that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence, 579 U.S. at 579. This case represents but another attempt from a politically disadvantaged group of our society to be included within the full scope of the legal and constitutional protections that most of us take for granted. Plaintiffs seek no preferential treatment; only equality. The Executive Branch of the Commonwealth recognizes the LGBT community’s right to equality under the law.
Defendants-Appellees request that this Honorable Court reverse the Judgment of the District Court that dismissed Plaintiffs-Appellants’ complaint for lack of a substantial federal question.
Given this concession, the First Circuit - - - which has not had occasion to rule on a challenge to a "state" same-sex marriage ban - - - is sure to find that Puerto Rico's same-sex marriage ban is unconstitutional, assuming it reaches the issue before the United States Supreme Court decides the issue in the cases presently before it.
Recall that the First Circuit did rule that DOMA, the Congressional statute barring federal recognition of same-sex marriage, was unconstitutional in 2012, before the United States Supreme Court held DOMA unconstitutional in United States v. Windsor, but after the United States Attorney General, Eric Holder, announced the Department of Justice would not defend the constitutionality of DOMA.
Wednesday, March 18, 2015
In its opinion in In re Hong Yen Chang on Admission, the California Supreme Court granted posthumous admission to the bar and reversed its more than a century-old decision in In re Hong Yen Chang 84 Cal. 163 (1890). The case was brought by LawProf Gabriel "Jack" Chin and students at UC-Davis College of Law.
Although Chang had been naturalized and was a lawyer in New York, a combination of the notorious Chinese Exclusion Act, upheld by the United States Supreme Court in Chae Chan Ping v. United States (1889), which prohibited naturalization of Chinese persons and the California requirement that members of the bar be citizens, the 1890 California Supreme Court held that Chang was not a "bona fide" citizen and could thus not be a member of the bar. In discussing the decision, the 2015 California Supreme Court stated:
Understanding the significance of our two-page decision denying Chang admission to the bar requires a candid reckoning with a sordid chapter of our state and national history.
Yet the court's opinion is not only of historic note. In discussing the repudiation of the sordid chapter, the California Supreme Court wrote:
More than a century later, the legal and policy underpinnings of our 1890 decision have been discredited. In 1972, this court unanimously held it was “constitutionally indefensible” to forbid noncitizens to practice law, calling such a ban “the lingering vestige of a xenophobic attitude” that “should now be allowed to join those anachronistic classifications among the crumbled pedestals of history.” (Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 291.) One year later, the high court reached the same conclusion. (In re Griffiths (1973) 413 U.S. 717.) In 2013, our Legislature passed a law making undocumented immigrants eligible for admission to the State Bar. (Bus. & Prof. Code, § 6064, subd. (b).) We thereafter granted admission to an undocumented immigrant who had been brought to the United States as a child, put himself through college and law school, passed the California bar exam, and met the requirement of good moral character. (In re Garcia (2014) 58 Cal.4th 440, 466.) We said “the fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the State Bar, or prevent the individual from taking an oath promising faithfully to discharge the duty to support the Constitution and laws of the United States and California.” (Id. at p. 460.)
While California has allowed noncitizens to be attorneys as the court notes, the issue is pending in other states, including - - - perhaps paradoxically - - - New York.
Tuesday, March 3, 2015
In a per curiam opinion in excess of 130 pages, the Alabama Supreme Court has ordered certain probate judges to 'discontinue the issuance of marriage licenses to same-sex couples' in compliance with a district judge's order and a denial of a stay by the United States Supreme Court.
[UPDATED: Reports state that the controversial Chief Justice Roy Moore recused himself from the ruling, but neither Moore nor recusal seems to be mentioned in the opinion]. The Alabama Supreme Court's opinion per curiam opinion states that "Stuart, Bolin, Parker, Murdock, Wise, and Bryan, JJ., concur," and that "Main, J., concurs in part and concurs in the result," and that "Shaw, J., dissents." Chief Justice Moore is the ninth of the nine justices of the Alabama Supreme Court (pictured below).
The case is styled Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County; In re: Alan L. King, in his official capacity as Judge of Probate for Jefferson County, et al., and is an Emergency Petition for Writ of Mandamus. Justice Greg Shaw's dissent highlights the unusual procedural posture of the case: he concludes that the Alabama Supreme Court does not have original jurisdiction, that the public interest groups (Alabama Policy Institute and Alabama Citizens Action Program) cannot sue in Alabama's name and do not have standing, that the petition for writ of mandamus is procedurally deficient given that there is no lower court opinion, and that the court's opinion improperly rules on the constitutionality of the Alabama marriage laws since that issue is not before it. Justice Shaw concludes:
I believe that this case is not properly before this Court. As the main opinion notes, this case is both unusual and of great public interest; however, I do not see a way for this Court to act at this time. By overlooking this Court's normal procedures; by stretching our law and creating exceptions to it; by assuming original jurisdiction, proceeding as a trial court, and reaching out to speak on an issue that this Court cannot meaningfully impact because the Supreme Court of the United States will soon rule on it; and by taking action that will result in additional confusion and more costly federal litigation involving this State's probate judges, this Court, in my view, is venturing into unchartered waters and potentially unsettling established principles of law.
Shaw's dissent provides a window into the Alabama Supreme Court's lengthy opinion. Much of the opinion concerns the odd procedural posture of the case. The opinion does specifically address the relationship between Alabama and the federal judge's decision by declaring that the "Respondents' Ministerial Duty is Not Altered by the United States Constitution":
The United States District Court for the Southern District of Alabama has declared that Alabama's laws that define marriage as being only between two members of the opposite sex -- what has been denominated traditional marriage -- violate the United States Constitution. After careful consideration of the reasoning employed by the federal district court in Searcy I, we find that the provisions of Alabama law contemplating the issuance of marriage licenses only to opposite-sex couples do not violate the United States Constitution and that the Constitution does not alter or override the ministerial duties of the respondents under Alabama law.
Thus, because the Alabama Supreme Court disagrees, Alabama is not bound by the federal decision. The Alabama Supreme Court's "per curiam" opinion on the constitutionality of the same-sex marriage ban is scholarly, lengthy, and well-reasoned (and perhaps more persuasive than the Sixth Circuit's opinion in DeBoer v. Snyder, to which the United States Supreme Court granted certiorari, and on which the Alabama Supreme Court relies extensively). But this discussion does little to resolve the basic federalism of whether the state is bound by the federal court's judgment. The court's order does include this specific provision, which may engage the issue most directly:
As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.
March 3, 2015 in Courts and Judging, Current Affairs, Federalism, Fourteenth Amendment, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, March 2, 2015
Senior United States District Judge Joseph Bataillon has enjoined Nebraska's same-sex marriage ban in its state constitution and found it violates the Fourteenth Amendment in his Memorandum and Order today in Waters v. Ricketts.
Recall that the United States Supreme Court will be hearing the issue this Term, having granted certiorari to the Sixth Circuit's divided opinion in the consolidated cases of DeBoer v. Snyder. The Court previously denied certiorari to opinions from the Fourth, Seventh, and Tenth Circuits all finding that same-sex marriage bans were unconstitutional, and the Ninth Circuit has ruled similarly. The Eighth Circuit, in which Nebraska is located, has not issued a definitive opinion on the constitutionality of same-sex marriage.
Judge Joseph Bataillon's ruling sounds in both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. He finds that marriage is a "fundamental liberty" and that the same-sex marriage ban is a facial classification based on gender. He also finds that Nebraska's state interests, including opposite sex parenting and protecting tradition, are insufficient. Throughout his analysis, he relies heavily on the Seventh Circuit's opinion in Baskin and the Ninth Circuit's opinion in Latta.
Interestingly, Judge Bataillon offers a prediction of the Court's conclusion:
The court finds the plaintiffs have demonstrated they will likely prevail on the merits of their claim. The court is persuaded that the Supreme Court will ultimately endorse, for one reason or another, the results obtained in the Fourth, Seventh, Ninth and Tenth Circuit challenges to same sex marriage bans.
Judge Bataillon supports this statement with an interesting footnote :
This conclusion is supported by the Supreme Court's recent denial of a stay of an Alabama district court decision invalidating a same-sex marriage ban. See Strange v. Searcy, 2015 WL 505563 (U.S. Feb. 9, 2015) (denying of application for stay of an injunction preventing Attorney General of Alabama from enforcing Alabama laws as defining marriage as a legal union of one man and one woman) (Justice Thomas noting in dissent that the failure to stay the injunction “may well be seen as a signal of the Court's intended resolution [of the constitutional question it left open in Windsor]."); see also Armstrong v. Brenner, No. 14A650, 2014 WL 7210190 (U.S. Dec. 19, 2014) (denying stay of preliminary injunction barring enforcement of Florida’s marriage exclusion); Wilson v. Condon, 14A533, 2014 WL 6474220 (U.S. Nov. 20, 2014) (denying stay of judgment finding South Carolina’s marriage exclusion laws unconstitutional); Moser v. Marie, 14A503, 2014 WL 5847590 (U.S. Nov. 12, 2014) (denying stay of preliminary injunction preventing enforcement of Kansas’ marriage exclusion); Parnell v. Hamby, No 14A413, 2014 WL 5311581 (U.S. Oct. 17, 2014) (denying stay of district court decision declaring Alaska’s marriage exclusion unconstitutional); Otter v. Latta, No. 14A374, 2014 WL 5094190 (U.S. Oct. 10, 2014) (denying application for stay of Ninth Circuit’s judgment finding Idaho’s marriage exclusion laws unconstitutional)
Also, the Supreme Court itself has telegraphed its leanings. See Lawrence [v. Texas] 539 U.S. at 605 (Scalia, J., dissenting) (stating that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage); see also United States v. Windsor, 133 S. Ct. 2675, 2709 (2013) (Scalia, J., dissenting) (essentially stating that the majority opinion in Windsor makes a finding of unconstitutionality regarding state same-sex marriage bans "inevitable.")
The use of Scalia's dissenting opinions is yet another example of the Scalia's "petard" phenomenon.
Also interesting is Judge Bataillon's rejection of injury to Nebraska should there be a preliminary injunction:
All but one of the plaintiff couples are married in a state that recognizes same-sex marriage. All of the couples have been in committed relationships for many years. Those that have resided in Nebraska have not caused damage to society at large or to the institution of marriage.
The preliminary injunction is effective March 9, at 8:00 am. Nebraska is reportedly appealing and seeking an emergency stay.
March 2, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Gender, Interpretation, Opinion Analysis, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Saturday, February 28, 2015
In its opinion in Matthews v. City of New York, the Second Circuit upheld the First Amendment rights of a police officer in a unanimous panel opinion, authored by Judge Walker.
The court reversed the district judge's grant of summary judgment in favor of the City that had concluded that the police officer, Craig Matthews spoke as a public employee, not as a citizen, and that his speech was thus not protected by the First Amendment.
At issue is the application of the closely divided Garcetti v. Ceballos and its "clarification" in the United States Supreme Court's 2014 decision in Lane v. Franks ,regarding the "scope of employment" exclusion for First Amendment protection. Matthews alleged that he was retaliated against for speaking about an alleged quota system mandating the number of arrests, summons, and stop‐and‐frisks that police officers must conduct. These are the same policies that have been so controversial in NYC and have been considered by the Second Circuit.
In February 2009, Matthews, believing that the quota system was damaging to the NYPD’s core mission, reported its existence to then‐Captain Timothy Bugge, the Precinct’s commanding officer at that time. In March and April of 2009, Matthews again reported the quota system’s existence to Captain Bugge, and, in May 2009, Matthews reported the same to an unnamed Precinct executive officer.
In January 2011, Matthews met with then‐Captain Jon Bloch, the Precinct’s new commanding officer, and two other officers in Captain Bloch’s office. Matthews told them about the quota system and stated that it was “causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers,” and that it “was having an adverse effect on the precinct’s relationship with the community.”
The Second Circuit panel held that "Matthews’s speech to the Precinct’s leadership in this case was not what he was “employed to do,” unlike the prosecutor’s speech in Garcetti." Importantly, "Matthews’s speech addressed a precinct‐wide policy. Such policy‐oriented speech was neither part of his job description nor part of the practical reality of his everyday work."
The court also considered whether the speech had a "civilian analogue," discussing its previous opinion in Jackler v. Byrne, a 2011 opinion in which the panel had also found the speech of a police officer protected by the First Amendment. In part, the panel's conclusion rested on the fact that "Matthews reported his concerns about the arrest quota system to the same officers who regularly heard civilian complaints about Precinct policing issues."
In holding that Matthews' speech is protected by the First Amendment, the opinion may be further indication that the grip of Garcetti on employee speech is loosening. It is not only Lane v. Franks, in which the United States Supreme Court unanimously reversed the Eleventh Circuit's summary opinion and the Second Circuit's previous opinion in Jackler, but cases such as the Third Circuit's Flora v. Luzerne County decided last month. This is not to say that Garcetti does not remain a formidable obstacle to any First Amendment claim by a public employee, but only that the obstacle is becoming less insurmountable.
Monday, February 9, 2015
Supreme Court Denies Stay of Alabama Same-Sex Marriage While Alabama Supreme Court Chief Justice Continues the Argument
Over a dissenting opinion by Justice Thomas, joined by Justice Scalia, the Court denied the application for a stay in Strange v. Searcy. Recall that in January, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.
The controversial Chief Judge of the Alabama Supreme Court Roy Moore has reacted negatively to the federal court opinion, including penning a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order. That letter prompted an ethics complaint filed against Roy Moore from the Southern Poverty Law Center arguing that:
Chief Justice Roy Moore has improperly commented on pending and impending cases; demonstrated faithlessness to foundational principles of law; and taken affirmative steps to undermine public confidence in the integrity of the judiciary. For all these reasons, we respectfully request that this Judicial Inquiry Commission investigate the allegations in this complaint and recommend that Chief Justice Moore face charges in the Court of the Judiciary.
assist weary, beleaguered, and perplexed probate judges to unravel the meaning of the actions of the federal district court in Mobile, namely that the rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law.
Judge Moore's argument that the state need not comply with federal decisions has prompted some commentators to make comparisons to Alabama's position during the Civil Rights Era, including a thoughtful WaPo piece by ConLawProf Ronald J. Krotoszynski Jr. at University of Alabama Law School.
The dissenting opinion from Justice Thomas (joined by Scalia) did not mention Judge Moore by name, but did include a decisive nod to some of Moore's arguments:
Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. *** It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.
Perhaps more importantly, Justice Thomas notes that the constitutionality of same-sex marriage is now before the Court, but yet
the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013). This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.
Justice Thomas is not the only one considering whether the Court's denial of a stay and thus allowing same-sex marriages to proceed in Alabama is a "signal" of the Court's leanings in DeBoer v. Snyder.
February 9, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Interpretation, News, Opinion Analysis, Recent Cases, Supremacy Clause, Supreme Court (US), Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Friday, February 6, 2015
LawProf Nancy Leong's exciting new project, TheRightsCast, starts off with an interview of LawProf Scott Dodson about his new anthology, The Legacy of Ruth Bader Ginsburg just published by Cambridge University Press. The book has a terrific array of contributors.
Worth a watch!
Tuesday, January 27, 2015
In a Letter to the Governor of Alabama, Robert Bentley today, the Chief Justice of Alabama Supreme Court, Roy Moore (pictured) asked the Governor to continue to uphold the respect for different-sex marriage and reject the judicial "tyranny" of the federal district court's opinion last Friday finding the same-sex marriage ban unconstitutional. He writes grounds the sacredness of man-woman marriage in the Bible, and writes
Today the destruction of that institution is upon us by federal courts using specious pretexts based on the Equal Protection, Due Process, and Full Faith and Credit Clauses of the United States Constitution. As of this date, 44 federal courts have imposed by judicial fiat same-sex marriages in 21 states of the Union, overturning the express will of the people in those states. If we are to preserve that “reverent morality which is our source of all beneficent progress in social and political improvement," then we must act to oppose such tyranny!
He argues that United States district court opinions are not controlling authority in Alabama, citing a case, Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 744n.5 (Ala. 2009), regarding a common law negligence claim rather than a constitutional issue. He does not argue the Supremacy Clause.
Justice Moore is no stranger to controversial positions, including promoting his biblical beliefs over federal law, and gained notoriety as the "the Ten Commandments Judge." Recall that Moore was originally elected to the Alabama Supreme Court with the campaign promise to “restore the moral foundation of the law” and soon thereafter achieved notoriety for installing a 5,280-pound monument depicting the Ten Commandments in the rotunda of the Alabama State Judicial Building. See Glassroth v. Moore, 335 F.3d 1282, 1285 (11th Cir. 2003). After federal courts found that the monument violated the Establishment Clause of the First Amendment, Glassroth v. Moore, 229 F. Supp. 2d 1290, 1304 (M.D. Ala. 2002), aff’d, Glassroth v. Moore, 335 F.3d 1282, 1284 (11th Cir. 2003), Chief Justice Moore was ordered to remove the monument. See Glassroth v. Moore, No. 01-T-1268-N, 2003 LEXIS 13907 (M.D. Ala. Aug. 5, 2003). After the deadline to remove the monument passed, Chief Justice Moore was suspended, with pay, pending resolution of an ethics complaint, which charged that he failed to “observe high standards of conduct” and “respect and comply with the law.” Jeffrey Gettleman, Judge Suspended for Defying Court on Ten Commandments, N.Y. Times, August 23, 2003, at A7.
January 27, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Full Faith and Credit Clause, Fundamental Rights, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US), Theory | Permalink | Comments (3) | TrackBack (0)
Tuesday, January 20, 2015
The United States Supreme Court heard oral arguments in Williams-Yulee v. The Florida Bar involving a First Amendment challenge to a state rule of judicial conduct prohibiting the personal solicitation of campaign contributions in a judicial election.
Recall that the Florida Supreme Court held that Florida Code of Judicial Conduct, Canon 7C(1) (substantially similar to Canons 4.1(A)(8) and 4.4 of the ABA Model Code of Judicial Conduct), satisfied strict scrutiny, finding that there were two compelling governmental interests (preserving the integrity of the judiciary and maintaining the public's confidence in an impartial judiciary) and that the provision was narrowly tailored to serve these interests (the prohibition of direct fundraising nevertheless allows for the establishment of "campaign committees" to raise funds). The Florida Supreme Court's opinion also pointedly noted that federal "judges have lifetime appointments and thus do not have to engage in fundraising" were divided on the constitutionality of the canon, while state judges were not.
In the arguments before the life-tenured Justices today, the problem of line-drawing was pronounced. The fact that the Florida rule was a compromise that allowed judicial campaigns to establish committees to solicit funds and allowed the candidate to know who had contributed and allowed the candidate to write thank you notes called into question whether the canon was narrowly tailored. But, as Justice Kagan noted, that might mean that the state would simply broaden the proscriptions, to include thank you notes for example, and asked whether that would be constitutional. Counsel for the petitioner ultimately answered in the negative, linking the election to the availability of money.
At the heart of this issue is whether judicial elections are like other elections or whether they are distinctly judicial.
Justice Ginsburg, who is decidedly in the camp that judicial elections are different, essentially urged her position at the beginning of the arguments ("the First Amendment allows the State to do things with respect to the election of judges that it wouldn't allow them to do with respect to the election of members of the legislature.")
Chief Justice Roberts seemingly leaned toward equating judicial and political elections, stating that "it's self-evident, particularly in judicial races" that "prohibiting a form of raising funds is to the great advantage of the incumbent" because the only way "incumbents are going to be challenged if you have somebody who can get their own distinct message out." Later he stated that the "fundamental choice was made by the State when they said we're going to have judges elected." This echoes Justice O'Connor's concurring opinion in Republican Party of Minnesota v. White, (2002).
Yet the issue of the coercion of the people being solicited, including attorneys as I have previously discussed, surfaced repeatedly. As Justice Sotomayor candidly revealed:
It's very, very, very rare that either by letter or by personal call that I ask a lawyer to do something, whether it's serve on a committee, help organize something, do whatever it is that I'm asking, that that lawyer will say no. Isn't it inherent in the lawyer/judge context that people are going to say yes?
Whether the Court "says yes" to the ability of a state to ban direct solicitation by judicial candidates will most likely result in a closely divided opinion.
In its unanimous opinion today in Holt (Muhammad) v. Hobbs the Court decided that the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, RLUIPA, 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.
The Court's conclusion is predictable from the tenor of the oral arguments. Writing for the Court, Justice Alito found that Holt/Muhammad easily met his burden of showing that the beard ban substantially burdened his exercise of religion under RLUIPA, after which the burden shifted to the Department of Correction to show that its refusal to allow petitioner to grow a 1⁄2- inch beard “(1) [was] in furtherance of a compelling governmental interest; and (2) [was] the least restrictive means of furthering that compelling governmental interest” under RLUIPA."
The Court rejected the Department of Correction's beard ban as the least restrictive way of furthering prison safety and security including hiding contraband (an argument that was "hard to take seriously" in the context of the 1/2 inch beard) and concealing identities (an argument that suffered in comparison to other institutions and the allowance of 1/4 inch beards and mustaches).
Justice Alito's 16 page opinion for the Court is a model of clarity and concision. It does beg the question, however, of why this was not the District Judge's opinion or the Eighth Circuit's opinion. As we previously discussed, the odds of this case getting before the Court were incredibly high, but the underlying pro se litigation exemplifies the difficulties of prison inmates vindicating their rights.
Indeed, Justice Sotomayor wrote separately to stress the role deference to prison administrators that should be afforded by courts. Prison officials must offer a "plausible explanation for their chosen policy that is supported by whatever evidence is reasonably available to them," rather than adopt policies based on "mere speculation." Again, this begs the question of the reliance by the lower courts on the prison's arguments.
Finally, the very brief concurring opinion by Justice Ginsburg, and joined by Justice Sotomayor, distinguished the much more contentious Hobby Lobby:
Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. See id., at ___, ___–___, and n. 8, ___ (slip op., at 2, 7–8, and n. 8, 27) (GINSBURG, J., dissenting). On that understanding, I join the Court’s opinion.
Thus, Justice Ginsburg makes clear that she is not opposed to religious accommodation per se, even under the strict scrutiny standard, when the rights of others are not part of the analysis.
Friday, January 16, 2015
On Friday afternoon, the Court granted certiorari in the Sixth Circuit consolidated cases in DeBoer v. Snyder from the Sixth Circuit. [Recall that a divided Sixth Circuit panel reversed the district court decisions in Kentucky, Michigan, Ohio, and Tennessee].
Here's the Court's grant:
The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The remainder of the Order sets out the briefing schedule and oral argument:
A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.
Thursday, January 15, 2015
On Tuesday, January 20, the United States Supreme Court will hear arguments in the closely-watched case of Williams-Yulee v. The Florida Bar involving a First Amendment challenge to a state rule prohibiting the personal solicitation of campaign contributions in a judicial election. Our discussion of the grant of certiorari is here.
Vanderbilt Law Review has published its "Roundtable" symposium about the pending case. It includes:
The Absent Amicus: “With Friends Like These . . .”
Robert M. O’Neil · 68 Vand. L. Rev. En Banc 1 (2015).
Public Interest Lawyering & Judicial Politics: Four Cases Worth a Second Look in Williams-Yulee v. The Florida Bar
Ruthann Robson · 68 Vand. L. Rev. En Banc 15 (2015).
Much Ado About Nothing: The Irrelevance of Williams-Yulee v. The Florida Bar on the Conduct of Judicial Elections
Chris W. Bonneau & Shane M. Redman · 68 Vand. L. Rev. En Banc 31 (2015).
Williams-Yulee and the Inherent Value of Incremental Gains in Judicial Impartiality
David W. Earley & Matthew J. Menendez · 68 Vand. L. Rev. En Banc 43 (2015).
Judicial Elections, Judicial Impartiality and Legitimate Judicial Lawmaking: Williams-Yulee v. The Florida Bar
Stephen J. Ware · 68 Vand. L. Rev. En Banc 59 (2015).
The Jekyll and Hyde of First Amendment Limits on the Regulation of Judicial Campaign Speech
Charles Gardner Geyh · 68 Vand. L. Rev. En Banc 83 (2015).
What Do Judges Do All Day? In Defense of Florida’s Flat Ban on the Personal Solicitation of Campaign Contributions From Attorneys by Candidates for Judicial Office
Burt Neuborne · 68 Vand. L. Rev. En Banc 99 (2015).
Williams-Yulee v. The Florida Bar, the First Amendment, and the Continuing Campaign to Delegitimize Judicial Elections
Michael E. DeBow & Brannon P. Denning · 68 Vand. L. Rev. En Banc 113 (2015).
January 15, 2015 in Courts and Judging, Due Process (Substantive), Elections and Voting, First Amendment, Fourteenth Amendment, Scholarship, Speech, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 14, 2015
In its opinion today in Smith v. County of Suffolk, a unanimous panel of the Second Circuit reversed the grant of a summary judgment in favor of the Suffolk County Police Department.
Smith, a police officer, had presumably engaged in First Amendment protected activity, including unathorized communication with media: Smith corresponded with CNN commentator Jeffrey Toobin over a period of three years; Smith exchanged emails with Newsday correspondent Christine Armario expressing concern that the Department’s policy of arresting unlicensed drivers led to ethnic discrimination.
These presumptions were made by the district court, not appealed by the Police Department, and so accepted by the Second Circuit as true. However, the district court's ruling that the third of the elements necessary to establish a prima facie case under Pickering v. Board of Education (1968): a causal connection between the protected speech and the adverse action. Instead, the Second Circuit found that
The plain language of several of the disciplinary charges at the heart of the adverse actions directly implicates not only the fact that Smith had engaged in protected speech, but also the content of that speech. . . . The Department. . . characterized the content of the speech and cited that characterization as the basis for several disciplinary charges.
The Second Circuit then analyzed whether a summary judgment was warranted under Mount Healthy City School District Board of Education v. Doyle (1977), if the Department "would have investigated, transferred, and suspended Smith absent his citizen-media speech." The court reasoned that the Mount Healthy defense requires specifics:
Much as plaintiffs are required at the prima facie stage to demonstrate not only the existence of protected speech but a causal connection between that speech and the adverse action, defendants asserting a Mount Healthy defense may not rely solely on the occurrence of unprotected misconduct: they must also articulate and substantiate a reasonable link between that misconduct and their specific adverse actions. A general statement that the employer would have taken some adverse action will not suffice.
(emphasis in original). Moreover,
Put simply, the evidence of record before us permits only inferences. Those inferences may be drawn in either party’s favor, and we require more than inferences from an employer seeking summary judgment based on the Mount Healthy defense.
Similar to the Supreme Court's unanimous decision last term in Lane v. Franks, the Second Circuit's opinion is another indication that courts should take First Amendment claims by public employees more seriously.
Monday, January 12, 2015
The Court heard oral arguments today in Reed v. Town of Gilbert regarding a First Amendment challenge to the town's extensive regulation regarding signage. The town generally 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.”
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 regulation as content neutral. Today's oral argument seemed inclined toward a contrary opinion.
In part, the problem seemed to be the city's protection of political speech over other types of speech. As Justice Scalia asked "is there no First Amendment right to give somebody directions?" This question seemed to undercut the categorical approach, for as Justice Kagan asked earlier in the argument to counsel for Reed,
Can I ask about the category for political signs, which is the most favorable? Because all the time this Court says that political speech is the most valued kind of speech. It's at the heart of the First Amendment. It gets special First Amendment protection. So in a way, why aren't isn't isn't the locality here basically adopting the same kind of category based understanding of political speech and its special rule and First Amendment analysis that this Court has very frequently articulated?
Importantly, the directional content is relevant only for temporary signs. This of course raises the question of what is a temporary sign and how can one discern that without looking at the sign’s content. At one point Chief Justice Roberts suggested that the distinction might be whether the sign is stuck in the ground with a little stake or whether it's in concrete, but quickly said that doesn't help the city's legitimate concerns. Yet the city's concerns over aesthetics and safety never seemed adequately connected to regulating directional signs more severely than election signs. Later, Justice Scalia asked whether there was a difference between the function of a sign and the content of the sign and whether function doesn't depend upon content.
Much of the doctrinal discussion was whether the standard of review should be strict scrutiny or intermediate scrutiny. The assistant to the Solicitor General argued that the correct standard with intermediate scrutiny under which the ordinance would be unconstitutional.
Interestingly Justice Ginsburg sought to distinguish intermediate scrutiny in the context of the First Amendment from the context of equal protection in which "intermediate scrutiny is a pretty tough standard." One can presume she was referencing her own opinion for the Court in United States v. Virginia, the VMI case.
As anticipated the justices posed several hypos. Probably the most trenchant of these was "Happy Birthday, Uncle Fred." Especially as compared to "Birthplace of James Madison" given that both signs could "be up for the same length of time, same size" as Justice Kennedy stated.
If today's argument is any indication - - - always a risky proposition - - - the regulations are likely to be declared unconstitutional. It may be that such an application will have what counsel for the town called an "opposite effect" : it "will limit speech because towns, cities will enact one size fits all" and governments "would be inclined to ban all signs except those that the First Amendment absolutely allows." Justice Alito, in reply, essentially shrugged: "You can make that argument in all kinds of contexts. I don't know where it gets you."
Saturday, January 10, 2015
The Ninth Circuit, over a dissent of three judges, has denied the petitions for en banc review of Latta v. Otter (and Sevick v. Sandoval) in which a panel held that the same-sex marriage bans in Idaho and Nevada respectively are unconstitutional.
Recall that the unanimous panel opinion authored by Judge Reinhardt held that the Idaho and Nevada laws regarding same-sex marriage "violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard" of SmithKline Beecham Corp. v. Abbott Labs.
The Ninth Circuit's panel opinion was rendered one day after the United States Supreme Court denied certiorari to the petitions in the Fourth, Seventh, and Tenth Circuit cases with similar holdings. However, since then, the Sixth Circuit rendered a divided panel decision in DeBoer v. Snyder reversing lower courts and upholding the same-sex marriage bans in in Kentucky, Michigan, Ohio, and Tennessee.
Judge O'Scannlain's dissent from the denial of en banc review - - - joined by Judges Rawlinson and Bea - - - relies in part on the Sixth Circuit's opinion in DeBoer v. Snyder and the circuit split it created. Like the Sixth Circuit, O'Scannlain argues that the operative precedent is Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question." And like the Sixth Circuit, the dissent distinguishes Windsor v. United States as limited to the federal government.
The major argument of the dissent, however, is that the question of same-sex marriage is not only one for the states, it is decidedly not one for the federal courts interpreting the constitution: "Nothing about the issue of same-sex marriage exempts it from the general principle that it is the right of the people to decide for themselves important issues of social policy."
This judicial restraint v. judicial activism debate is well-worn territory. And like other judges, O'Scannlain is not a consistent adherent to one side or the other: Recall his dissent from en banc review in Pickup v. Brown, in which the panel upheld a California statute banning sexual conversion therapy against a constitutional challenge. But O'Scannlain does interestingly write:
As Justice Kennedy wrote in Schuette, ‘‘It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds . . . . Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.”
Thus, O'Scannlain implicitly points to Kennedy's inconsistency regarding the desirability of resort to democratic processes and judicial restraint in the affirmative action case of Schuette as compared to his opinion in Romer v. Evans (on Colorado's Amendment 2), as well as Windsor and Lawrence v. Texas, and presumably Kennedy's opinion should the same-sex controversy reach the United States Supreme Court.
The Court itself is currently entertaining several petitions for certiorari on the same-sex marriage issue, including the Sixth Circuit opinion.
Meanwhile, the Fifth Circuit heard oral arguments (January 9) on appeals in Robicheaux v. Caldwell (in which a federal judge upheld Louisiana's same-sex marriage ban); DeLeon v. Perry (preliminary injunction against Texas' same-sex marriage ban as unconstitutional); and Campaign for Southern Equality v. Bryant, (preliminary injunction against Mississippi's same-sex marriage ban as unconstitutional). The oral arguments are available on the Fifth Circuit's website.
January 10, 2015 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Sexual Orientation, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)