Thursday, May 1, 2014

Getting it Wrong: Even Supreme Court Justices Do It and What that Means for Grading Students

Grading, marking, and giving feedback on student exams, papers, and projects can be wearing, which perhaps explains why professors can succumb to the temptation to bemoan student "bloopers" and mistakes. 

But at the end of this semester,  a mistake in Justice Scalia's dissent in EPA v. EME Homer City Generation provides some perspective.

From the original opinion, here's the passage in Justice Scalia's dissent:

[Section] D. Plus Ça Change:
EPA’s Continuing Quest for Cost-Benefit Authority

The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the alloca­tion problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Re­spondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is not for EPA or this Court to determine.

This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmak­ing—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect. . . .

[emphasis added]

And from the current opinion, here's the corrected passage:

[Section] D. Our Precedent

The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the allocation problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Respondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is for Congress, not this Court, to determine.

This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001), confronted the contention that EPA should consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmaking—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect.

[empasis added]

Justice Scalia misidentified the party that argued on behalf of considering costs in Whitman v. American Trucking - - - an opinion that Justice Scalia authored in 2001 - - - and reversed it.  Indeed, the EPA opposed considering costs in Whitman v. American Trucking.  

DeweydefeatsThe mistake has attracted attention: TPM labels  it an "epic blunder,"  Salon calls it an "embarrassing error," and WSJ says it was "cringeworthy" and "unusually glaring."

Why the mistake?  Blame law clerks or sloppiness.  Recite "to err is human."  Or perhaps the mistake simply fit with the dissent's "shadow argument" (the EPA has been on a quest to expand its authority, as conveyed in the subtitle to the section) and so the actual fact became misremembered or overlooked.

But whatever the possible explanations, it's a good reminder for professors as we read "mistakes" by students who are, afterall, students, and do not have law clerks, proofreaders, years of experience, the highest position in the legal field, or the ability to correct mistakes after the final version of the exam or paper is submitted. 

 

May 1, 2014 in Courts and Judging, Current Affairs, News, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 29, 2014

Oral Argument in Lane v. Franks on First Amendment rights of employees

The argument in Lane v. Franks in the Supreme Court sounded like the argument was occurring in the Eleventh Circuit.  But the Eleventh Circuit resolved the case on its nonargument calendar; that's precisely the problem.

Here's my discussion over at SCOTUSBlog.

 

April 29, 2014 in First Amendment, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 22, 2014

Court in Schuette: Michigan Can Ban Affirmative Action

The Court's opinion in Schuette v. BAMN (Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary),  clearly upheld Michigan's Proposal 2, enacted as Article I §26 of the Michigan Constitution barring affirmative action in state universities and subdivisions. The plurality opinion for the Court was authored by Justice Kennedy, and joined by Chief Justice Roberts and Justice Alito.  Chief Justice Roberts also authored a brief concurring opinion. Justice Scalia's concurring opinion was joined by Justice Thomas.  Justice Breyer also wrote a concurring opinion.  Justice Sotomayor's impassioned dissent was joined by Justice Ginsburg.  Justice Kagan was recused.

Affirmative_Action_March_in_WashingtonThe state constitutional amendment was a reaction to the Court's opinion in Grutter v. Bollinger (2003), upholding the University of Michigan Law School's use of diversity in admissions.  But since Grutter, the Court has been decidely less friendly to affirmative action, as in  Fisher v. University of Texas.

Recall that the en banc Sixth Circuit majority had relied upon the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief, relying on Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969).  At oral arguments, the Justices had seemed hostile to that theory.

Justice Kennedy's plurality opinion for the Court carefully rehearses the cases, but it is probably his rhetoric that is most noteworthy:

This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.

As for Justice Scalia's opinion, it admits that the "relentless logic of Hunter and Seattle would point to a similar conclusion in this case" as the Sixth Circuit understood.  However,  both Hunter and Seattle should be overruled.  Justice Breyer, concurring, would distinguish Hunter and Seattle because Schuette  "does not involve a reordering of the political process; it does not in fact involve the movement of decisionmaking from one political level to another."

It is Justice Sotomayor's dissent, joined by Justice Ginsburg, that displays the most heft.  At more than 50 pages and almost as lengthy as all the other opinions combined, Sotomayor's opinion is an extended discussion of equal protection doctrine and theory, as well as the function of judicial review.  In her last section, she also addresses the "substantive policy" of affirmative action and the difference it makes.

The stark division among the Justices is clear.  Sotomayor writes that "race matters."  Scalia reiterates that the constitution is "color-blind."  Roberts implies that racial "preferences do more harm than good."  And Kennedy invokes a First Amendment right to debate race:

Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. . . . The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. . . . 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. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. 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. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.

Given this passage, perhaps it is not surprisingly that Justice Kennedy does not cite Romer v. Evans - - - which he authored in 1996 - - - in today's plurality opinion in Schuette.  In Romer v. Evans, Kennedy had this to say about Colorado's Amendment 2, which prohibited the enactment of anti-discrimination laws on the basis of sexual orientation:

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.

[image via]

April 22, 2014 in Affirmative Action, Equal Protection, First Amendment, Fundamental Rights, Opinion Analysis, Race, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Oral Arguments in Susan B. Anthony List v. Driehaus on Campaign Lies

The Court heard oral arguments today in Susan B. Anthony List v. Driehaus, a challenge to an Ohio election law prohibiting false statements.  As we explained when the Court granted certiorari in January, the case centers Article III.  The Sixth Circuit determined that the case was not ripe because although Driehaus had filed a complaint with the Ohio Elections Commission about an advertisement from Susan B. Anthony List because it could not show "an imminent threat of prosecution at the hands of any defendant" and thus could not "show a likelihood of harm to establish that its challenge is ripe for review."  It could also not show its speech was chilled; indeed representatives from the organization stated they would double-down.

580px-Seal_of_the_Ohio_Elections_Commission.svgThis is not to say that the First Amendment was entirely absent from today's arguments.  Arguing for Susan B. Anthony List, an anti-abortion organization,  Michael Carvin referred to the Ohio Election Commission as a "ministry of truth," a characterization later echoed by Justice Scalia.  During Eric Murphy’s argument, on behalf of the State of Ohio, there were references to United States v. Alvarez in which the Court found the “Stolen Valor” statute unconstitutional, with Justice Alito (who first mentioned the case) as well as Justices Scalia and Sotomayor participating in that discussion.

But Article III concerns, the subject of the grant of certiorari, dominated.  But which Article III concerns specifically?  As Justice Ginsburg asked:  "Do you think this is a matter of standing or ripeness?"  Michael Carvin's reply deflects the doctrinal distinctions and seeks to go to the heart of his argument:

In all candor, Justice Ginsburg, I can't figure out the difference between standing and ripeness in this context.  No question that we are being subject to something. I think the question is whether or not the threat is sufficiently immediate.

 Analogies abounded.  Justice Sotomayor asked why the injury in this case wasn't as "speculative" as in Clapper v. Amnesty International USA decided in early 2013 in which the Court denied standing to Amnesty International to challege domestic surveillance under FISA?  On the other hand, the challengers in Holder v. Humanitarian Law Project did have standing, based on a credible threat of prosecution" based upon 150 prior prosecutions.  But, as the Deputy Solicitor General noted in answer to a query from Chief Justice Roberts and quoting from Ohio's brief, under the Ohio statute between 2001 and 2010 there were "a little bit over 500" proceedings based on the state false statements law.

The context of an election was discussed at several junctures.  Another election cycle is approaching and election cycles themselves are short periods of intense action and when they conclude the issues can be moot. 

Despite the references to Younger v. Harris, federalism was more anemic than robust.  The notion that the state supreme court should be given an opportunity to construe the false statement law provoked laughter, with Chief Justice Roberts remark "Well, that will speed things up" as a catalyst. 

If the oral argument is any indication, it seems that the federal courts will have a chance to consider the merits of the First Amendment challenge to the Ohio statute.

April 22, 2014 in Federalism, First Amendment, Oral Argument Analysis, Reproductive Rights, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, April 7, 2014

The Constitutionality of Anti-LGBT Discrimination Laws: US and UK Comparisons Continued

Recall that in November 2013 we posted "UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?" 

The answer is "no," at least if "soon" means the case discussed in that post, Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer.  The petition concentrated on the First Amendment speech rights of the photographer rather than religious rights; the Court denied certiorari today. 

491px-Henry_VIII_Art_Gallery_of_Ontario
King Henry VIII, an important figure
in the "Church of England"

Meanwhile, Lady Brenda Hale, a Justice on the UK Supreme Court, appeared at a Comparative and Administrative Law Conference last month at Yale and spoke on the topic of "Religion and Sexual Orientation: The clash of equality rights,"  posting her written remarks on the UK Supreme Court site.  Justice Hall considered the Bull case which we discussed as well as cases from Canada and the EU, all presenting the same basic issue: should religious persons be exempt from anti-discrimination laws?  Justice Lady Hale offers some interesting observations: "it is fascinating that a country with an established church can be less respectful of religious feelings than one without."  She also discusses direct and indirect discrimination and reiterates a point she made in the Bull case itself: 

Both homosexuals and Christians were subject to the same laws requiring them not to discriminate in the running of their businesses. So if homosexual hotel keepers had refused a room to an opposite sex or Christian couple, they too would have been acting unlawfully.

This leads her to proclaim:

If you go into the market place you cannot pick and choose which laws you will obey and which you will not.

This may be an indication of how Lady Brenda Hale would rule in Hobby Lobby so recently argued before the United States Supreme Court, assuming the English Parliament would enact a statute similar to the Religious Freedom Restoration Act.

Another difference: The arguments before the UK Supreme Court are televised live.

April 7, 2014 in Comparative Constitutionalism, Current Affairs, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, International, Religion, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, April 4, 2014

Daily Read: E-Book by Collins and Skover on McCutcheon and Campaign Finance

WMS-210x315Published on the same day that the Court rendered its 5-4 decision in McCutcheon v. Federal Election CommissionWhen Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment is an ebook by ConLawProfs Ron Collins and David Skover.

A taste of the authors' analysis is apparent in their "foreward" to the SCOTUSblog symposium on the case, "It's all forward now."  They write that in "the past eight years, since Chief Justice John Roberts and Justice Samuel Alito have been on the Court, the Justices have handed down six First Amendment campaign finance opinions" all of which have declared a campaign finance regulation unconstitutional under the First Amendment, and five of which were 5-4 decisions. They also provide some "takeaways" from the opinion. 

The book will certainly be a must-read for anyone interested in campaign finance and the First Amendment.

April 4, 2014 in Books, Campaign Finance, First Amendment, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, April 3, 2014

Second Circuit Holds NYC Can Ban Religious Services in School Buildings

Does a city policy governing "extended use" of school facilities that excludes permits for the "purpose of holding religious worship services, or otherwise using a school as a house of worship" violate the First Amendment?

The Second Circuit in its opinion in Bronx Household of Faith v. Board of Education of the City of New York answered in the negative, a majority of the panel holding that the policy, Regulation I.Q., does not violate either the Free Exercise Clause or the Establishment Clause.

If this controversy sounds familiar, that would not be surprising.  We discussed it here, and as today's opinion notes, the litigation has been "long-running," citing Bronx Household of Faith v. Bd. of Educ. of City of New York, 650 F.3d 30 (2d Cir. 2011) (“Bronx Household IV”); Bronx Household of Faith v. Bd. of Educ. of City of New York, 492 F.3d 89 (2d Cir. 2007) (“Bronx Household III”); Bronx Household of Faith v. Bd. of Educ. of City of New York, 331 F.3d 342 (2d Cir. 2003); Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207 (2d Cir. 1997). 

800px-Winslow_Homer_-_Country_School
Country School by Winslow Homer circa 1873 via

Today's opinion  - - - Bronx Household V - - - reverses the district judge's grant of an injunction on Free Exercise claims which were arguably not before the courts previously.  The majority of the Second Circuit panel, in an opinion by Judge Pierre Leval joined by Guido Calabresi, carefully refuted the district judge's reasoning.  In short, the panel majority held that Locke v Davey, 540 U.S. 712 (2004) (finding that the exclusion of devotional theology degree programs from eligibility for state scholarships does not violate Free Exercise Clause) was more apposite than Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)(holding that an ordinance "targeting" the Santeria practice of animal sacrifice merited strict scrutiny and violated the Free Exercise Clause). 

The panel rejected the argument that the Regulation I.Q. targets religion generally or targets religions that have worship services.  The panel also rejected the attempt to distinguish the scholarship in Locke v, Davey, noting that under the "extended use" policy, the city subsidizes the use of school facilities since the organizations can use the facilities without cost.  The panel also found that the city's desire not to violate the Establishment Clause was a valid one.  As the panel summarized:

In view of (1) the absence of discriminatory animus on the part of the Board against religion, or against religions that conduct worship services; (2) the bona fides and the reasonableness of the Board’s concern that offering school facilities for the subsidized conduct of religious worship services would create a substantial risk of incurring a violation of the Establishment Clause claim; and (3) the fact that the Board’s policy (a) leaves all persons and religions free to practice religion without interference as they choose, (b) treats all users, whether religious or secular, in identical fashion, and (c) imposes no burden on any religion, leaving all free to conduct worship services wherever they choose other than the Board’s schools; as well as the other reasons recited in this opinion and in Bronx Household IV, we conclude that Reg. I.Q. does not violate Plaintiffs’ rights to free exercise of religion, whether or not it is subject to strict scrutiny.

As to the Establishment Clause, the court rejected Bronx Household's argument that for the city to determine what constituted "religious worship services" would infringe the Establishment Clause.  Bronx Household relied upon Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694 (2012) - - - an example of how doctrine has been changing during this protracted litigation - - - but the majority expressed a very different view:

Hosanna-Tabor, moreover, does not merely fail to support Bronx Household’s claim of Establishment Clause violation due to excessive entanglement by the Board; it actively contradicts the argument. This is because in Hosanna-Tabor the Supreme Court itself did precisely what the District Court found a governmental entity prohibited from doing.

In other words, when the United States Supreme Court "undertook to make its own determination whether the plaintiff was a minister subject to the ministerial exception," it engaged in the very same type of determination that Bronx Household argues would violate the Establishment Clause. 

If Senior Judge John Walker, dissenting, has his way, the Court might have a chance to discuss this Establishment Clause rationale again.  Walker contends that this "case presents substantial questions involving the contours of both religion clauses and the Free Speech Clause of the First Amendment, the resolution of which are ripe for Supreme Court review."  Most certainly, Bronx Household will be quoting that language in any petition seeking Supreme Court review.

April 3, 2014 in Courts and Judging, Establishment Clause, First Amendment, Free Exercise Clause, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Tuesday, April 1, 2014

Daily Read: Mother Jones on Hobby Lobby's Investments (in Contraception)

Last week's oral arguments in Hobby Lobby v. Sebelius and the companion case of Conestoga Wood Specialities Corp. v. Sebelius saw discussions about the substantial burden on the companies regarding providing contraceptive coverage and included Chief Justice Roberts noting that Hobby Lobby's religious beliefs included the provision of health insurance and Justice Kennedy specifically asking about why the company could not simply pay any fines or taxes. 

220px-Mother_Jones_1902-11-04
Mary Harris "Mother" Jones via

According to an article by Molly Redden in Mother Jones magazine today, Hobby Lobby does not exercise its religion in quite the same way when in comes to its 401(K) retirement plans.  Based on corporate disclosures, three-quarters of the funds (73 million) have holdings that "clashed" with the owners of Hobby Lobby's stated religious principles.  The corporation apparently did not avail itself of the faith-based investing that is often available. 

Under First Amendment free exercise doctrine as well as the Religious Freedom Restoration Act (RFRA), questioning sincerity is difficult and adherents to a religious belief need not be consistent in their beliefs.  Seemingly the only case in which a "contraceptive mandate" challenge suffered on these grounds is Eden Foods v. Sebelius. 

Nevertheless, this scenario could have served as the basis of an interesting hypothetical regarding the "substantial burden" on its religious beliefs the company and owners claim.

 

April 1, 2014 in Abortion, Current Affairs, First Amendment, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 25, 2014

Justice Kennedy and the Hobby Lobby Contraceptive Mandate Oral Arguments: Is it Simply Administrative Law?

The arguments in the consolidated cases of  Hobby Lobby and Conestoga Wood Specialities v. Sebelius displayed Justices sharply divided on the issues as we discussed.  Whether Justice Kennedy will be the deciding vote in the cases is sure to be the subject of much speculation.  What, if anything, might be derived from his expressions at oral argument?  

He began, relatively early in the oral argument, by making space for Paul Clement to elaborate on his "framework" and by posing a question about RFRA:

JUSTICE KENNEDY: You were beginning by giving us a framework for your argument. Do I think of this as a statutory case? Of course, the First Amendment is on the stage at some point here, but I take it you can prevail just on the question of statutory interpretation, and if that is so, are there any statutory rules that work in your favor, that is to say, avoiding a constitutional question or how do we think about this case, primarily as a statutory case?

Justice Kagan thereafter pointed out that RFRA was a "special kind of statute" that "specifically refers back to a "body of constitutional law."

Justice Kennedy also asked about the relative substantial burden of paying any fines: "Let's assume that the cost of providing insurance is roughly equivalent to the $2,000 penalty. How ­­ how is the employer hurt? He can just raise the wages."

Clement eventually answered that “If they take away the health care insurance, they are going to have to increase the wages to make up for that. And they're going to have to pay the $2,000 penalty on top of it, plus they're going to have to violate their ­­ their own interest which is, we actually ­­ we believe it's important to provide our employees with qualified health care.

JUSTICE KENNEDY: Okay, the last is important. But just assume hypothetically that it's a wash, that the employer would be in about the same position if he paid the penalty and the employer ­­ pardon me, an employee went out and got the insurance and that the employee's wages were raised slightly and then it's ­­ and that it's a wash so far as the employer are concerned, other than the employer's religious objection, but just on the financial standpoint. Can we assume that as a hypothetical. Then what would your case be?

MR. CLEMENT: I think my case would be that in that case the government might be able to sort of support itself on the compelling interest. I think there would still be a substantial burden on their exercise. But again, this all turns on issues that the government hasn't put in issue.

Toward the end of Clement's time, Kennedy posed a different type of query:

JUSTICE KENNEDY: Just before your time starts to go too fast, how would you suggest that we think about the position and the rights of the ­­ of the employees? And you can have hypotheticals about the employer makes them ­­ wants to make them wear burkas and so forth. That's not in this case. 

But in ­­ in a way, the employees are in a position where the government, through its healthcare plans, is ­­ is, under your view, is ­­ is allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious ­­ religious beliefs of the employer. Does the religious beliefs just trump? Is that the way it works?

In Kennedy's extensive colloquy with Solicitor General Verrilli, the subject veered from compelling governmental interest back to the status of RFRA:

JUSTICE KENNEDY:  Is it your position that part of the compelling interest here is that you have to protect the integrity ­­ the operational integrity of the whole Act?

GENERAL VERRILLI: It is part of our argument, absolutely. And ­­ but it ­­ but there is in addition to that, much more ­­

JUSTICE KENNEDY: Does that mean the constitutionality of the whole Act has to be examined before we accept your view?

GENERAL VERRILLI: Well, I think it has been examined, Your Honor, is my recollection.

(Laughter.)

GENERAL VERRILLI: But ­­ but with respect to ­­ but with respect to the ­­ there is a particularized interest here in that what we are talking about is a question of whether 14,000 employees and their families get access to this contraceptive coverage.

JUSTICE KENNEDY: You ­­ you have exempted a whole class of corporations and you've done so under your view not because of RFRA.

GENERAL VERRILLI: So let me ­­ let me go to that ­­

JUSTICE KENNEDY: Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court.

But when we have a First Amendment issue of ­­ of this consequence, shouldn't we indicate that it's for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

 Kennedy later continued on the issue of compelling governmental interest:

JUSTICE KENNEDY: I still don't understand how HHS exercised its judgment to grant the exemption to nonreligious corporations if you say it was not compelled by RFRA.

GENERAL VERRILLI: I don't think ­­

JUSTICE KENNEDY: Then it must have been because the health care coverage was not that important.

GENERAL VERRILLI: It didn't grant an exemption to any nonreligious organizations, Justice Kennedy. It granted an exemption to churches, and that was it. . . .

And later, Justice Kennedy, whose opinions on abortion are certainly complex, asked Verrilli what seemed a version of a particular "slippery slope" that had not been extensively considered:

JUSTICE KENNEDY: Under your view, a profit corporation could be forced ­­ in principle, there are some statutes on the books now which would prevent it, but ­­ could be forced in principle to pay for abortions.

GENERAL VERRILLI: No. I think, as you said, the law now ­­ the law now is to the contrary.

JUSTICE KENNEDY: But your reasoning would permit that.

GENERAL VERRILLI: Well, I think that ­­ you know, I don't think that that's ­­ I think it would depend on the law and it would depend on the entity.

 Finally, during Verrilli's argument, Justice Kennedy expressed interest in a hypothetical posetd by Justice Alito about a law requiring humane treatment of animals and therefore prohibiting kosher and halal slaughter.

Justice Kennedy asked no questions during Clement's rebuttal, but Clement gave the last word to Kennedy:

 . . . . If I could have just one second more to say that the agency point that Justice Kennedy has pointed to is tremendously important, because Congress spoke, it spoke in RFRA. Here the agency has decided that it's going to accommodate a subset of the persons protected by RFRA. In a choice between what Congress has provided and what the agency has done, the answer is clear.

Certainly Clement's articulation is simplistic, but it could satisfy Kennedy's initial search for some statutory construction principles that might make the answer to the divisive issues also seem simple.

[image: Justice Kennedy by Donkey Hotey via]

March 25, 2014 in Abortion, Courts and Judging, First Amendment, Oral Argument Analysis, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Supreme Court Hears Oral Arguments in Hobby Lobby and Conestoga Wood Specialties on RFRA and the "Contraceptive Mandate"

Should corporations (or their owner/shareholders) be able to interpose a religious objection to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage? 

Simplified, that's the question at the heart of the oral arguments today in the consolidated cases of Hobby Lobby v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius in which the Court granted certiorari in November.  The legal issues are complex (our primer is here and another here), but given the basic conflict, it's no wonder the case has attracted so much attention. Another good overview is Lyle Denniston's preview of the arguments for SCOTUSblog.

Recall that the Tenth Circuit's divided en banc opinion in Hobby Lobby essentially split 5-3 over the issue of whether a for-profit secular corporation has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause.  The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees.

Recall also that the Third Circuit's divided panel opinion in Conestoga Woods rejected the contention that the corporation could raise a claim under RFRA, either as a corporation possessing free exercise of religion rights or under a "pass through" theory allowing the beliefs of the owners to pass to the corporate form.

Moreover, Hobby Lobby and Conestoga Woods are not the only two opinions on these issues.  A digest of some previous circuit court cases and some discussion of the controversy is here; the divided Seventh Circuit opinion is discussed here; and the ACLU has a helpful running tab on all the cases here. So, the Court's ultimate conclusion will impact a number of cases.

Today's 90 minute oral argument {transcript} in the consolidated cases began with Paul Clement representing the "private parties," Hobby Lobby and Conestoga Wood and then Solicitor General Donald Verrilli  representing the federal government, including Kathleen Sebelius as Secretary of Health and Human Services.  Not surprisingly, the questions to Clement largely came from Justices Kagan, Sotomayor, and Ginsburg, and the questions to Verrilli came from Justices Alito and Scalia, as well as Chief Justice Roberts.   Also not surprisingly, the arguments were peppered with slippery slopes, other analogies, questions of Congressional intent in passing RFRA, RFRA's relationship with First Amendment doctrine, and the relevance of the corporate form. 

The question as to the cost of not complying with the mandate (part of the substantial burden on the corporations under RFRA) was the subject of this rather interesting exchange during Paul Clement's argument:

JUSTICE KAGAN:  . . . .

And so the question is, why is there a substantial burden at all?

MR. CLEMENT: Well, just to be clear, we were talking about the same thing. So the option, the choice, is between paying a $475 million a year penalty and a $26 million a year penalty.  That's what Hobby Lobby faces.  So $2,000 per person - - -  ­­

JUSTICE KAGAN: No, between paying $2,000 per employee per year if Hobby Lobby does not provide ­­- - -

MR. CLEMENT: That's $26 million.

JUSTICE KAGAN: You know, Hobby Lobby is paying something right now for the - - -­­ for the coverage. It's less than what Hobby Lobby is paying for the coverage. There are employers all over the United States that are doing this voluntarily because they think that it's less.

CHIEF JUSTICE ROBERTS: I thought - - -­­ I thought that part of the religious commitment of the owners was to provide health care for its employees.

MR. CLEMENT: That is true, Mr. Chief Justice. It is also true that this ­­- - -

JUSTICE SOTOMAYOR: Well, if they want to do that, they can just pay a greater salary and let the employees go in on the exchange.

MR. CLEMENT: Exactly, which is, by the way, why comparing the $2,000 penalty to the cost of the health care is a false - - - ­­ it's a false comparison.

JUSTICE SOTOMAYOR: It's not called a penalty. It's called a tax. And it's calibrated ­­ - - - and it's calibrated ­­

CHIEF JUSTICE ROBERTS: She's right about that.

 (Laughter.)

 The laughter arises from Chief Justice Roberts' decision in NFIB v. Sebelius that the ACA was constitutional under Congress' power to tax, but it is worth noting that Roberts jumped in to assert the corporation's exercise of religion as including the provision of health insurance.  Justices Ginsburg and Kagan later come back to this point:

JUSTICE GINSBURG: There was a point made earlier, and I think you didn't mean to say this, that provision of health care is not part of their religious belief. Covering their employees for health care, that is not a religious tenet, right?

MR. CLEMENT: No, it actually is.  Again, it hasn't been the principal theory been litigated. But see, if you complaints and you go back to our briefs, you know, it's part of the religious beliefs that both the Hahns and the Greens have. They think it's actually important ­­- - -

JUSTICE KAGAN: But, Mr. Clement, you're not saying, are you, that their religious beliefs mandate them to provide health care? I thought that you were never making that claim.

MR. CLEMENT: I didn't have to make that claim in the course of this litigation. What I'm pointing out, though, is for purposes of the substantial burden analysis, it is perfectly appropriate to take into account that the 2,000 ­­ the $26 million in fines they would pay would not be the only thing that they would lose out if they are on that horn of the dilemma. They would also lose out all the additional wages they would have to pay, and they would be in this position of not offering health care, which is something they believe is important for their religion as well.

JUSTICE KAGAN: You know, I'm sure they seem like very good employers. And I'm sure they want to be good employers. But again, that's a different thing than saying that their religious beliefs mandate them to provide health insurance . . . .

If the "substantial burden" under RFRA is the most difficult element that the corporations to meet, then the strict scrutiny test applicable to any substantial burden is surely the government's most difficult task.  The questioning noted that the "least restrictive means" test in RFRA was clearly more difficult to meet than even the pre-Smith cases that RFRA explicitly sought to restore - - - and there did not seem to be even a glimmer that RFRA should be held unconstitutional (which would, of course, require a departure from O Centro Espirita Beneficiente Uniao Do Vegetal v. Gonzales). 

 Justice Breyer, asking his first question of the argument, requested that Verrilli provide a "precise answer" to the "least restrictive" argument that the government should simply pay for the contraceptive coverage.  Verrilli's argued that this suggestion by the corporations was not properly before the Court, but even if it was, that even the accommodation would be subject to a RFRA challenge.   Justice Alito suggested that Clement be asked about whether this would hapen, and indeed Clement was asked (by Justice Sotomayor).  Clement's reply:

We haven't been offered that accommodation, so we haven't had to decide what kind of objection, if any, we would make to that. But it's important to recognize that as I understand that litigation, the objection is not to the fact that the insurance or the provider pays for the contraception coverage. The whole debate is about how much complicity there has to be from the employer in order to trigger that coverage. And whatever the answer is for Little Sisters of the Poor, presumably you can extend the same thing to my clients and there wouldn't be a problem with that.

 Whether Justice Kennedy will be the deciding vote in this case is certain to be subject to much speculation and his questions will be closely read; our extended discussion is here.  But without question, the Justices seem sharply divided.

 

March 25, 2014 in Courts and Judging, Current Affairs, First Amendment, Gender, Oral Argument Analysis, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2014

Supreme Court Declines Review of Arbitration Open Access Case

Today the United States Supreme Court denied review of Strine v. Delaware Coalition, a case in which a Third Circuit panel held that arbitration proceedings cannot be confidential under the First Amendment. 

As we previously discussed, the judges in the Third Circuit were quite divided; there were three opinions in the case.  But the majority conclusion requiring these high stakes commercial arbitrations allowed by Delaware law and performed by Delaware judges to not remain secret seems the correct one.  Especially if the First Amendment access to "trials" should continue to have substantive meaning.

450px-Le_secret
"le secret" via

 

It's always dangerous to speculate why the Supreme Court declines to enter the fray, but  it's worth noting that Delaware's secrecy scheme protecting commercial arbitration is rather unique.

March 24, 2014 in Courts and Judging, First Amendment, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 17, 2014

Daily Read: Hurley v. Irish-American Gay, Lesbian, and Bisexual Group

Writing for a unanimous Court in 1995, Justice Souter in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group held that the First Amendment rights of the South Boston Allied War Veterans Council (and its individual member John "Wacko" Hurley) allowed the exclusion of the Irish-American Gay, Lesbian, and Bisexual Group (GLIB) from the St. Patrick's Day Parade, despite the Massachusetts' public accommodation law prohibiting discrimination on the basis of sexual orientation.

Rainbow-shamrockJustice Souter famously opined that although the parade might seem not to have a particularized message that would be inconsistent with GLIB, its message was as particularized as "the unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll."

Some St. Patrick's Day parades continue to exclude identified sexual minority groups, including the Boston one - - - in which Boston's mayor will reportedly not participate this year, and the New York City one - - - in which NYC's mayor will likewise reportedly not participate this year.  Other St. Patrick's Day parades do not ban LGBT groups.

March 17, 2014 in Association, First Amendment, Sexual Orientation, Sexuality, Speech, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Saturday, March 15, 2014

Tennessee Federal Judge Issues a Narrow Injunction Regarding Prohibition of Same-Sex Marriage Recognition

In her opinion in Tanco v. Haslom, federal district judge in the Middle District of Tennessee, Aleta A. Trauger, decided that what she called the state's "Anti-Recognition Laws" are most likely unconstitutional as violative of equal protection, even under rational basis review.  She therefore enjoined the state from refusing to recognize the otherwise valid out-of-state marriages of the six plaintiffs in the case. 

Judge Trauger's opinion is relatively brief.  She highlights the United States Supreme Court's decision in United States v. Windsor , and while she does not mention Justice Scalia's Windsor dissent, she does echo the cases that have, and notes the "rising tide" of cases that have relied on Windsor to find their state same-sex marriage prohibitions unconstitutional.  She states that she

finds Judge Heyburn’s equal protection analysis in Bourke [v. Beshear], which involved an analogous Kentucky anti-recognition law, to be especially persuasive with respect to the plaintiffs’ likelihood of success on the merits of their Equal Protection Clause.

1827_Finley_Map_of_Tennessee_-_Geographicus_-_Tennessee-finley-1827

 

While emphasizing the narrowness of her opinion and that the United States Supreme Court will ultimately rule on the matter, she concludes with a prediction:

At this point, all signs indicate that, in the eyes of the United States Constitution, the plaintiffs’ marriages will be placed on an equal footing with those of heterosexual couples and that proscriptions against same-sex marriage will soon become a footnote in the annals of American history.

[image: 1827 map of Tennessee via]

March 15, 2014 in Courts and Judging, Family, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 3, 2014

Court Grants Certiorari in Bearded Prisoner Religious Freedom Case

The United States Supreme Court today granted certiorari in Holt [Muhammad] v. Hobbs, later issuing a clarifying order:

The petition for a writ of certiorari is granted limited to the following question: “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.”

455px-Meister_von_San_Vitale_in_Ravenna_013Recall that the Religious Land Use and Institutionalized Persons Act - - - RLUIPA - - - essentially reinstates the "strict scrutiny" standard of the pre-Smith  [Employment Div. Dep't of Human Resources v. Smith] cases to a more limited set of circumstances than Congress did with RFRA, held unconstitutional as applied to the states as exceeding §5 of the Fourteenth Amendment in City of Boerne v. Flores.   RLUIPA arguably gives prisoners more free exercise of religion protection than the general public, though in cases,  prison security often provides a sufficient compelling governmental interest that is being further by the least restrictive means and thus overcome a prisoner's religious freedom.

Many RLUIPA claims concern grooming as I discuss in Dressing Constitutionally.  For Muslim male inmates, the question of facial hair has been prominent.  While some circuits have rejected RLUIPA claims, crediting the administrative costs of special scissors necessary to not completely shave prisoners, other courts have upheld RLUIPA claims, finding that prison officials did not satisfy the compelling government standard achieved by the least restrictive means.

The Eighth Circuit's opinion in Holt v. Hobbs is typically cursory at three pages.  Here's the court's analysis:

we conclude that defendants met their burden under RLUIPA of establishing that ADC’s grooming policy was the least restrictive means of furthering a compelling penological interest, see Fegans v. Norris, 537 F.3d 897, 903 (8th Cir. 2008) (absent substantial evidence in record indicating that response of prison officials to security concerns is exaggerated, courts should ordinarily defer to their expert judgment in such matters), notwithstanding Mr. Holt’s citation to cases indicating that prisons in other jurisdictions have been able to meet their security needs while allowing inmates to maintain facial hair, see id. at 905 (although prison policies from other jurisdictions provide some evidence as to feasibility of implementing less restrictive means of achieving prison safety and security, it does not outweigh deference owed to expert judgment of prison officials who are more familiar with their own institutions).

The court's reliance on Fegans v. Norris, involving the Arkansas Department of Corrections restriction on hair length for male (but not female) inmates, is not surprising.  Fegans  is a particularly deferential decision by the Eighth Circuit - - - it almost seems as if the court applied rational basis rather than the strict scrutiny required by RLUIPA.

The Court's grant of certiorari in Holt v. Hobbs might bring some clarity to the religious freedom for prisoners in the grooming context.

[image via]

March 3, 2014 in Congressional Authority, Federalism, First Amendment, Religion, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Justice Scalia's Dissents and the Post Windsor Same-Sex Marriage Cases

There have been a spate of federal judges declaring state constitutional or statutory provisions banning recognition of same-sex marriage unconstitutional under the Fourteenth Amendment: 

De Leon v. Perry, from the Western District of Texas;
Bostic v. Rainey  from the Eastern District of Virginia;
Bourke v. Beshear from the Western District of Kentucky; 
Bishop v. United States from the Northern District of Oklahoma;
Obergefell v. Wymyslo from the Southern District of Ohio;
Kitchen v. Herbert, from the District of Utah;
Lee v. Orr applicable only to Chicago.

Other than Lee v. Orr, in which the judge was only ruling on an earlier start date for same-sex marriage than the Illinois legislature had declared, the judges in each of these cases relied on Justice Scalia's dissenting opinions.

In "Justice Scalia’s Petard and Same-Sex Marriage," over at CUNY Law Review's "Footnote Forum," I take a closer look at these cases and their relationship to Shakespeare's famous phrase from Hamlet.

 

350px-Petardsketch2
"A petard, from a seventeenth century manuscript of military designs" via

 

 

March 3, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Sexual Orientation, State Constitutional Law, Supreme Court (US), Theory, Weblogs | Permalink | Comments (0) | TrackBack (0)

Saturday, March 1, 2014

Daily Read: Judith Resnik on a Different Type of Secret Court

In her op-ed in the NYT, entitled "Renting Judges for Secret Rulings," ConLawProf Judith Resnik (pictured below) asks "Should wealthy litigants be able to rent state judges and courthouses to decide cases in private and keep the results secret?," and quickly adds that the answer should be an "easy no."

But she argues that the recent Delaware legislation - - - declared unconstitutional by a divided panel of the Third Circuit as we previously discussed  - - - threatens to subvert access to the courts should Delaware be successful in its petition for certiorari. 

Resnik writes:

The Delaware legislation is a dramatic example of rich litigants using their resources to close court systems that taxpayers support and constitutions require. But the problem goes beyond Delaware. To honor constitutional commitments that “all courts shall be open,” the court should refuse the Delaware judges’ request, and Congress should restore rights to public courts for consumer and employment disputes.

Resnick_judith

Resnik's excellent work on "democratic courtrooms" makes her the perfect scholar to address the possibility of anti-democratic courtrooms.

[image of Judith Rensik via]

March 1, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, February 28, 2014

Daily Video: A Camera and Protest in the United States Supreme Court

Here's the video:

 

 

 

Commentary available from Reuters  and NYT.

Our discussion of the oral arguments in McCutcheon and its relationship to Citizens United is here.

February 28, 2014 in Campaign Finance, Film, First Amendment, Speech, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 26, 2014

Supreme Court in Apel: First Amendment is an Issue on Remand?

The Court issued its opinion today in United States v. Apel, a case involving a protest outside a military facility.  As to whether the protest involved the First Amendment, that issue is still unresolved.  As we noted about the oral argument, mentions of the First Amendment were rebuffed and they play little role in the opinion, which concentrates on the statutory interpretation issue. 

Nevertheless, Justice Ginsburg's concurring opinion, joined by Sotomayor, is worth reading in its entirety: 400px-Ruth_Bader_Ginsburg_official_SCOTUS_portrait

I agree with the Court’s reading of 18 U. S. C. §1382: The military’s choice “to secure a portion of the Base more closely—be it with a fence, a checkpoint, or a painted green line—does not alter the boundaries of the Base or diminish the jurisdiction of the military commander.”  But a key inquiry remains, for the fence, checkpoint, and painted line, while they do not alter the Base boundaries, may alter the First Amendment calculus.

When the Government permits the public onto part of its property, in either a traditional or designated public forum, its “ability to permissibly restrict expressive conduct is very limited.” United States v. Grace, 461 U. S. 171, 177 (1983). In such venues, the Government may enforce “reasonable time, place, and manner regulations,” but those regulations must be “content-neutral [and] narrowly tailored to serve a significant government interest.” Ibid. (internal quotation marks omitted).

The stated interest of the Air Force in keeping Apel out of the area designated for peaceful protest lies in ensuring base security. That interest, however, must be assessed in light of the general public’s (including Apel’s) permission to traverse, at any hour of the day or night, the highway located a few feet from the designated protest area. See Appendix to opinion of the Court, ante (displaying maps of the area). The Air Force also permits open access to the middle school, bus stop, and visitors’ center, all situated in close proximity to the protest area.

As the Air Force has exhibited no “special interes[t] in who walks [or] talks” in these places, Flower v. United States, 407 U. S. 197, 198 (1972) (per curiam), it is questionable whether Apel’s ouster from the protest area can withstand constitutional review. The Court has properly reserved that issue for consideration on remand.  In accord with that reservation, I join the Court’s opinion.

[citations to opinion and briefs omitted].

Does this mean that Apel may have a First Amendment challenge yet?

February 26, 2014 in Courts and Judging, First Amendment, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Thursday, February 13, 2014

Kentucky Federal Judge Rules State's Nonrecognition of Same-Sex Marriages Violates Equal Protection

United States District Judge John G. Heyburn's  opinion in Bourke v. Beshear finds that Kentucky's statutory and state constitutional provisions defining marriage as limited to one man and one woman violate the Fourteenth Amendment's Equal Protection Clause when applied to same-sex spouses married in another state.

The judge's 23 page opinion is crafted for both a nonlegal and legal audience. 

For popular consumption, Judge Heyburn's opinion has passages written in direct prose answering questions he himself has posed and unburdened with extensive citations.  For example, he writes:

For many others, this decision could raise basic questions about our Constitution. For instance, are courts creating new rights? Are judges changing the meaning of the Fourteenth Amendment or our Constitution? Why is all this happening so suddenly?

The answer is that the right to equal protection of the laws is not new. History has already shown us that, while the Constitution itself does not change, our understanding of the meaning of its protections and structure evolves.  If this were not so, many practices that we now abhor would still exist.

800px-Collier's_1921_Kentucky
He discusses religiosity in similar terms, beginning by noting that many Kentuckians believe "what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society’s benefit" and later opining that

The beauty of our Constitution is that it accommodates our individual faith’s definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.

For its legal audience, Judge Heyburn's opinion contains a rigorous analysis of equal protection doctrine, of the Supreme Court's decision last June in United States v. Windsor, and of the courts applying Windsor. 

Engaging with the Court's opinion in Windsor, authored by Justice Kennedy, Judge Heyburn expresses some frustration with the lack of clear equal protection doctrine, observing that the Court "never clearly explained the applicable standard of review."  Nevertheless, Judge Heyburn used two "principles" of Windsor: that the actual purpose of the law must be considered in light of animus and that the laws must not demean one group by depriving them of the rights provided for others.  Ultimately, Judge Heyburn applies rational basis review and finds that the government interests proferred by Kentucky - - - as well as those advanced in an amicus brief submitted by the Family Trust Foundation of Kentucky - - - are not legitimate interests.

Judge Heyburn also discusses the three federal district judges who have reached similar conclusions in "well-reasoned opinions," citing the opinions in Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah (now stayed).

To be clear, the effect of the opinion is not to mandate clerks in Kentucky begin offering marriage licenses to same-sex couples.  But it is to require Kentucky to recognize same-sex marriages valid in another state as valid in Kentucky on the same terms as other marriages.

[image: 1921 map of Kentucky via]

February 13, 2014 in Courts and Judging, Family, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Sunday, February 9, 2014

Sexual Orientation Change Efforts Ban: Petition for Certiorari After Ninth Circuit Declines En Banc Review

Liberty Counsel, the organization that challenged California's ban on reparative therapy, has filed a petition for writ of certiorari in the United States Supreme Court.

Recall that the Ninth Circuit upheld the California statute in Pickup v. Brown in August 2013.  The  panel concluded that on the continuum between speech and conduct, California's SB 1172 landed on conduct, "where the state's power is great, even though such regulation may have an incidental effect on speech."   Applying a rational basis standard, the court rejected the claim that California legislature acted irrationally.  

The Ninth Circuit has issued an opinion and rejected en banc rehearing over a dissent by Judge O’Scannlain, joined by Judges Bea and Ikuta.  The dissenting opinion began with a forceful "issue statement" worthy of an oral argument:

May the legislature avoid First Amendment judicial scrutiny by defining disfavored talk as “conduct”? That is what these cases are really about.

Inside_my_head_croppedInterestingly, the original panel - - - Judge Susan Graber, joined by Chief Judge Alex Kozinski and Judge Morgan Christen - - - included an amended panel opinion accompanying the denial of the en banc rehearing.  This amended panel opinion adds two passages that discuss United States Supreme Court precedent on the "conduct" issue with which the dissenters disagreed. 

First, Judge Graber adds a brief discussion  [in italics below] before the more detailed discussion of Ninth Circuit precedent:

The first step in our analysis is to determine whether SB 1172 is a regulation of conduct or speech. “[W]ords can in some circumstances violate laws directed not against speech but against conduct . . . .” R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992). “Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.” Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR II”), 547 U.S. 47, 62 (2006). The Supreme Court has made clear that First Amendment protection does not apply to conduct that is not “inherently expressive.” Id. at 66. In identifying whether SB 1172 regulates conduct or speech, two of our cases guide our decision: National Association for the Advancement of Psychoanalysis v. California Board of Psychology (“NAAP”), 228 F.3d 1043 (9th Cir. 2000), and Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).

Second, and more substantially, the amended opinion includes a discussion of Holder v. Humanitarian Law Project upon which the dissenting opinion relied, as well as expanding the reliance on Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR II”):

Plaintiffs contend that Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), supports their position. It does not.

As we have explained, SB 1172 regulates only (1) therapeutic treatment, not expressive speech, by (2) licensed mental health professionals acting within the confines of the counselor-client relationship. The statute does not restrain Plaintiffs from imparting information or disseminating opinions; the regulated activities are therapeutic, not symbolic. And an act that “symbolizes nothing,” even if employing language, is not “an act of communication” that transforms conduct into First Amendment speech. Nev. Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2350 (2011). Indeed, it is well recognized that a state enjoys considerable latitude to regulate the conduct of its licensed health care professionals in administering treatment. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 157 (2007) (“Under our precedents it is clear the State has a significant role to play in regulating the medical profession.”).

In sharp contrast, Humanitarian Law Project pertains to a different issue entirely: the regulation of (1) political speech (2) by ordinary citizens. The plaintiffs there sought to communicate information about international law and advocacy to a designated terrorist organization. The federal statute at issue barred them from doing so, because it considered the plaintiffs’ expression to be material support to terrorists. As the Supreme Court held, the material support statute triggered rigorous First Amendment review because, even if that statute “generally functions as a regulation of conduct . . . as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message.” Humanitarian Law Project, 130 S. Ct. at 2724 (second emphasis added).6 Again, SB 1172 does not prohibit Plaintiffs from “communicating a message.” Id. It is a state regulation governing the conduct of state-licensed professionals, and it does not pertain to communication in the public sphere. Plaintiffs may express their views to anyone, including minor patients and their parents, about any subject, including SOCE, insofar as SB 1172 is concerned. The only thing that a licensed professional cannot do is avoid professional discipline for practicing SOCE on a minor patient.

This case is more akin to FAIR II. There, the Supreme Court emphasized that it “extended First Amendment protection only to conduct that is inherently expressive.” 547 U.S. at 66 (emphasis added). The Court upheld the Solomon Amendment, which conditioned federal funding for institutions of higher education on their offering military recruiters the same access to campus and students that they provided to nonmilitary recruiters. The Court held that the statute did not implicate First Amendment scrutiny, even as applied to law schools seeking to express disagreement with military policy by limiting military recruiters’ access, reasoning that the law schools’ “actions were expressive only because the law schools accompanied their conduct with speech explaining it.” Id. at 51, 66. Like the conduct at issue in FAIR II, the administration of psychotherapy is not “inherently expressive.” Nor does SB 1172 prohibit any speech, either in favor of or in opposition to SOCE, that might accompany mental health treatment. Because SB 1172 regulates a professional practice that is not inherently expressive, it does not implicate the First Amendment.

It's fair to say that these passages - - - incorporating United States Supreme Court cases - - - are intended to communicate to the Supreme Court Justices why the Ninth Circuit panel opinion does not merit review.

A split in the circuits does not seem likely.  A New Jersey federal judge upheld the similar New Jersey statute prohibiting sexual conversion therapy under similar rationale.

[image via]

February 9, 2014 in Courts and Judging, First Amendment, Opinion Analysis, Recent Cases, Sexual Orientation, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)