Monday, June 19, 2017
In the United States Supreme Court unanimous decision in Packingham v. North Carolina, the Court found that the state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access commercial social networking sites, violated the First Amendment. This outcome was predictable given the then-eight Justices' skepticism during the oral arguments in February. Recall that Packingham was convicted of the North Carolina felony for his Facebook page on which he wrote " Thank you Jesus. God is good" regarding a result on his parking ticket.
The Court's majority opinion by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, is a mere 10 pages. The Court not only stresses the breadth of the North Carolina statute, but highlights the role of the Internet in "our modern society and culture" as vital to the First Amendment:
A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. . . .
While in the past there may have been difficulty in identifying the most important places (in a spatial sense)for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular. Seven in ten American adults use at least one Internet social networking service. . . .
While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and sofar reaching that courts must be conscious that what they say today might be obsolete tomorrow.
This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.
For the Court majority, even assuming the North Carolina statute was content neutral and should be analyzed under intermediate scrutiny, the statute "enacts a prohibition unprecedented in the scope of First Amendment speech it burdens." The Court noted that the present statute applies to all social networking sites including Facebook, LinkedIn, and Twitter, and that a state could possibly enact a more specific provision, such as prohibiting contacting a minor on social media.
In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.
While Justice Alito's opinion, joined by Chief Justice Roberts and Justice Thomas, agrees with the outcome, Alito criticizes Kennedy's opinion for the Court as not being sufficiently circumspect and cautious, and for engaging in "loose rhetoric." For Alito, the problem with the North Carolina statute is likewise its breadth: "its wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child." Among Alito's examples are Amazon.com, the Washington Post website, and WebMD. Yet Alito's opinion, just slightly longer than Kennedy's for the Court, found it important to argue that the entirety of the internet or even social media sites are "the 21st century equivalent of public streets and parks." In support of this, Alito argues that the internet offers an "unprecedented degree of anonymity."
Yet Alito's concurring opinion does not essentially disagree with the Court's finding that it would be possible for a state to craft a sufficiently narrow statute. The disagreement, however, may be in the room for states to maneuver in drafting such a criminal statute.
Monday, June 12, 2017
In its per curiam unanimous opinion in Hawai'i v. Trump, the Ninth Circuit panel affirmed the finding of standing and held that the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780) (known as EO2, the revised travel ban or "Muslim Ban 2.0) most likely conflicts with the Immigration and Nationality Act (INA). Thus, the Ninth Circuit affirmed the injunction against EO2.
The oral argument about a month ago raised both the statutory and constitutional issues, but recall that District Judge Derrick Watson's opinion in Hawai'i v. Trump centered on the Establishment Clause claim. For the Ninth Circuit, however, the statutory claim took precedence. The Ninth Circuit noted that "the district court decided an important and controversial constitutional claim without first expressing its views on Plaintiffs’ statutory claims, including their INA-based claim," although the " INA claim was squarely before the district court." The Ninth Circuit referred to the "admonition that “courts should be extremely careful not to issue unnecessary constitutional rulings,”and concluded that because "Plaintiffs have shown a likelihood of success on the merits of that claim," the court "need not" and does not "reach the Establishment Clause claim to resolve this appeal."
On the constitutional ramifications of finding EO2 exceeded the president's power under the statute, the court invoked the famous "Steel Seizure Case" framework by Justice Jackson:
Finally, we note that in considering the President’s authority, we are
cognizant of Justice Jackson’s tripartite framework in Youngstown Sheet & Tube
Co. v. Sawyer. See 343 U.S. 579, 635–38 (1952) (Jackson, J., concurring).
Section 1182(f) ordinarily places the President’s authority at its maximum. “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Id. at 635. However, given the express will procedure for refugee admissions to this country, and § 1182(a)(3)(B)’s criteria for determining terrorism-related inadmissibility, the President took measures that were incompatible with the expressed will of Congress, placing his power “at its lowest ebb.” Id. at 637. In this zone, “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” Id. at 638.
But, as the court continued, there would be a different state of affairs if Congress acted:
We have based our decision holding the entry ban unlawful on statutory considerations, and nothing said herein precludes Congress and the President from reaching a new understanding and confirming it by statute. If there were such consensus between Congress and the President, then we would view Presidential power at its maximum, and not in the weakened state based on conflict with statutory law. See id. at 635–38.
In two respects, the Ninth Circuit narrowed the injunction. First, it vacated the preliminary injunction "to the extent it enjoins internal review procedures that do not burden individuals outside of the executive branch of the federal government." Second, like the Fourth Circuit en banc opinion in International Refugee Assistant Project v. Trump, it held that the injunction should not be entered against the president as defendant. But the essential effect of the opinion affirms the injunction against EO2.
Thus, the controversial presidential travel ban Executive Orders have been challenged in courts and found invalid. EO1 was enjoined and eventually withdrawn. This Ninth Circuit opinion on EO2 on statutory grounds, joins the Fourth Circuit en banc opinion in International Refugee Assistant Project v. Trump finding EO2 most likely unconstitutional on Establishment Clause. The DOJ has sought review by the Supreme Court on the Fourth Circuit ruling; most likely the DOJ will similarly seek review of this Ninth Circuit ruling.
In its opinion in Sessions v. Morales-Santana, the United States Supreme Court has held that the differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child violated equal protection as included in the Fifth Amendment's protections. Recall that the Second Circuit had held there was an equal protection violation and had subjected the the statutory scheme to intermediate heightened scrutiny under United States v. Virginia (VMI) (1996), rejecting the government's argument that essentially all citizenship statutes should be subject to mere rational basis review. The Supreme Court opinion in Morales-Santana, authored by Justice Ginsburg (who also wrote VMI), was joined by Chief Justice Roberts, Kennedy, Breyer, Sotomayor, and Kagan. Justices Thomas and Alito briefly dissented.
But while the Court's opinion affirms the Second Circuit's constitutional conclusion, it nevertheless holds that Morales-Santana is not entitled to relief, reversing the Second Circuit on that point.
The Court first rehearses the complicated statutory scheme and facts. The Immigration and Nationality Act of 1952, codified at 8 U.S.C. § 1409(c), was the one in effect when Morales-Santana was born in 1962 outside the US to unwed parents. His parents married each other in 1970 and he was admitted to the US as a lawful permanent resident in 1975. In 2000, Morales-Santana was placed in removal proceedings after a conviction for various felonies and applied for withholding based on derivative citizenship from his father. Derivative citizenship, which occurs at the moment of birth, is bestowed on a child born abroad to an unwed citizen mother and non‐citizen father has citizenship at birth so long as the mother was present in the United States or one of its outlying possessions for a continuous period of at least one year at some point prior to the child’s birth. By contrast, a child born abroad to an unwed citizen father and non‐citizen mother has citizenship at birth only if the father was present in the United States or one of its outlying possessions prior to the child’s birth for a period or periods totaling at least ten years, with at least five of those years occurring after the age of fourteen. Morales-Santana's father, born in Puerto Rico in 1900, met the one year requirement but not the ten year requirement at the time of his son's birth. Both parties agreed that had Morales‐Santana’s mother, rather than his father, been a citizen continuously present in Puerto Rico until 20 days prior to her nineteenth birthday, she would have satisfied the requirements to confer derivative citizenship on her child. It is this gender‐based difference in treatment that Morales‐Santana claims violated his father’s right to equal protection.
The Court finds that the Morales-Santana has standing to raise the differential as applied to his parents and that the difference between unwed mothers and unwed fathers is "of the same genre of classifications" as the one in landmark sex equality cases, thus "heightened scrutiny is in order." The Court finds that there is no exceedingly persuasive justification and notes that the statutory scheme dates "from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are." The Court also concluded that previous immigration cases, such as Nguyen v. INS, (2001) which upheld gender discrimination regarding establishment of paternity were not controlling. The Court rejected the government's rationale of "risk-of-statelessness" for the children as being "an assumption without foundation."
Despite the Court's resounding conclusion that the provision violates equal protection, the Court declines to extend the shorter unwed mother residency period to the unwed father. Instead, the "right of equal treatment" here should be a withdrawal of benefits from the favored class (women) rather than an extension of benefits to the disfavored class (men). The Court states that any choice between the methods of achieving equal treatment "is governed by the legislature's intent, as revealed by the statute at hand." Thus, although the general approach is extension of benefits, because the statutory general rule was the longer one, the exception for favorable treatment is the one that should be stricken.
Thus, this is one of those relatively rare equal protection cases in which the challenger wins the battle to have the provision declared unconstitutional, but loses the war because equal treatment becomes the harsher rule.
In Loving v. Virginia, decided June 12, 1967, the United States Supreme Court unanimously held that the Virginia statute criminalizing marriage between White and (most)non-White persons violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The case has become an iconic one, not only because it explicitly states that the Virginia law was "obviously an endorsement of the doctrine of White Supremacy," but also because it identifies the "freedom to marry" as "one of the vital personal rights essential to the orderly pursuit of happiness by free men."
Creighton Law Review hosted a symposium for the 50th anniversary of the case and the issue is just published.
Among the terrific articles is one that considers the Hollywood film, released last year, as well as the previous documentary. In the important contribution Filmic Contributions to the Long Arc of the Law: Loving and the Narrative Individualization of Systemic Injustice, Alanna Doherty argues that the film, and to a lesser extent the documentary "repackages the Lovings’ historic civil rights struggle against wider systemic oppression as a personal victory won by triumphant individuals through the power of love." This individualization through narrative, she argues, obscures the collective and civil rights struggle that is the ground of the action the film portrays. Likewise, the "White Supremacy" of the state is attributed to a few rogue individuals. Doherty argues that such individualization is not only limited, but also accounts for the post-Loving developments in equality doctrine regarding affirmative action:
Both Loving (the film) and Fisher [v. University of Texas at Austin] (the case) present their stories of individualized racial harm at the cost of avoiding meaningful recognition of systemic injustice. While in Loving this may seem positive due to the nature of the decision, and although in Fisher the court ultimately upheld the admissions policy, harmful ideological work is still being done to our socio-legal consciousness. In Fisher, the Court set injurious legal precedent in how it evaluates affirmative action programs—under intense scrutiny and with such little deference that fewer, if any, will pass constitutional muster. And because law is an embodiment of social practices interacting with cultural conceptions in noetic space, a trend in cinematic and legal narratives to shirk responsibility for holding oppressive institutions accountable only furthers a reciprocity with cultural ideology that moves the law away from helping those most vulnerable under it.
And yet, even as Loving (the film) is subject to critique as being limited, sentimental, and nostalgic, Doherty ultimately contends that the film has legal relevance given our fraught political landscape:
perhaps the cultural and legal imagining that needs to be done in the noetic space of 2017 is one grounded in the inspiring recognition of triumphant small-scale love. Maybe what Loving truly contributes to such a tumultuous cultural moment is the notion that not only must we continue to commit to fights we should not have to fight, but that if we want to take care of each other even when the law fails us, we must decide to keep loving.
June 12, 2017 in Affirmative Action, Conferences, Due Process (Substantive), Equal Protection, Family, Federalism, Film, Fourteenth Amendment, Fundamental Rights, History, Race, Scholarship, Supreme Court (US) | Permalink | Comments (2)
Tuesday, May 30, 2017
Seventh Circuit Affirms Preliminary Injunction Against School District in Transgender Sex-Segregated Restroom Case
In its opinion in Whitaker v. Kenosha Unified School District, Judge Ann Williams begins for the unanimous panel including Chief Judge Diane Wood and Judge Illana Rovner, by stating that the issue would seem to be a "simple request: to use the boys' restroom while at school," but the school district believed it was "not so simple because Ash is a transgender boy."
The Seventh Circuit decision to affirm the preliminary injunction directing the school district allowing the plaintiff, a transgender student, Ash (also known as Ashton), to use the boy's restroom rests both on Title IX and the Equal Protection Clause. As a preliminary issue, the court found that pendent jurisdiction of the district court's order denying the school district's motion to dismiss was not appropriate.
On the likelihood to succeed on the merits of Title IX, the court considered companion Title VII doctrine in the circuit, including the doctrine of sex-stereotyping. The fact that Congress has not added transgender status to Title IX (or Title VII) was not determinative. Instead,
Ash can demonstrate a likelihood of success on the merits of his claim because he has alleged that the School District has denied him access to the boys’ restroom because he is transgender. A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX. The School District’s policy also subjects Ash, as a transgender student, to different rules, sanctions, and treatment than non‐transgender students, in violation of Title IX. Providing a gender‐neutral alternative is not sufficient to relieve the School District from liability, as it is the policy itself which violates the Act. Further, based on the record here, these gender‐neutral alternatives were not true alternatives because of their distant location to Ash’s classrooms and the increased stigmatization they caused Ash. Rather, the School District only continued to treat Ash differently when it provided him with access to these gender‐neutral bathrooms because he was the only student given access.
And, while the School District repeatedly asserts that Ash may not “unilaterally declare” his gender, this argument misrepresents Ash’s claims and dismisses his transgender status. This is not a case where a student has merely announced that he is a different gender. Rather, Ash has a medically diagnosed and documented condition. Since his diagnosis, he has consistently lived in accordance with his gender identity. This law suit demonstrates that the decision to do so was not without cost or pain.
On the Equal Protection Clause claim, the court found that "the School District's policy cannot be stated without referencing sex" and thus the correct level of scrutiny should be the heightened one for sex classifications, citing United States v. Virginia (VMI) (1996). The court rejected the District's asserted interest of protecting the "privacy rights" of all the other students as too abstract and conjectural to be genuine. Moreover, the court faulted the representation at oral argument regarding the necessity for a birth certificate by first noting that this was not in the policy itself, and later returning to the issue regarding passports. Perhaps more importantly, the court also critiqued the notion of documents to prove sex designations:
Further, it is unclear that the sex marker on a birth certificate can even be used as a true proxy for an individual’s biological sex. The marker does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex. Therefore, one’s birth certificate could reflect a male sex, while the individual’s chromosomal makeup reflects another. It is also unclear what would happen if an individual is born with the external genitalia of two sexes, or genitalia that is ambiguous in nature. In those cases, it is clear that the marker on the birth certificate would not adequately account for or reflect one’s biological sex, which would have to be determined by considering more than what was listed on the paper.
Thus, court found the School District did not satisfy the equal protection standard of United States v. Virginia.
Recall that the district judge in Evancho v. Pine-Richland School District reached a similar conclusion on the Equal Protection Clause in February, and the constitutional claim seems to have more traction given the Title IX claim's uncertainty after the Court's dismissal and remand of G.G. v. Glouster County School Board.
Monday, May 22, 2017
In its opinion in Cooper v. Harris, formerly McCrory v. Harris, the Court affirmed the findings of a three-judge District Court that North Carolina officials violated the Equal Protection Clause in the 2011 redistricting with regard to two districts: District 1 and District 12.
Recall that in Bethune-Hill v. Virginia State Board of Elections (argued the same day as Cooper v. Harris), the Court clarified the analysis for reviewing racial gerrymandering claims and remanded the matter back to the three judge District Court to determine 11 out of the 12 districts at issue.
Justice Elana Kagan, writing for majority in Cooper v. Harris, provides the analytic structure for assessing challenges to racial gerrymandering under the Equal Protection Clause:
- First, the plaintiff must prove that “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district,” quoting Miller v. Johnson (1995). This means that the legislature "subordinated other factors," including geographic ones, partisan advantage, and "what have you" to racial considerations.
- Second, if racial considerations predominated over others, the design of the district must withstand strict scrutiny, requiring a compelling governmental interest achieved by narrowly tailored means.
- A recognized compelling governmental interest is compliance with the Voting Rights Act (VRA) is a compelling governmental interest. "This Court has long assumed that one compelling interest is complying with operative provisions of the Voting Rights Act of 1965."
- To satisfy the narrow-tailoring requirement, the state must show that it had “a strong basis in evidence” for concluding that the VRA required its action. "Or said otherwise, the State must establish that it had “good reasons” to think that it would transgress the Act if it did not draw race-based district lines," a standard which "gives States “breathing room” to adopt reasonable compliance measures that may prove, in perfect hindsight, not to have been needed."
The Court unanimously agrees that District 1 fails this standard. The racial intent in redistricting was clear. As to the means chosen, the Court rejected North Carolina's argument that it redesigned the district to comply with the VRA because in fact District 1 had historically been a "cross-over" district in which "members of the majority help a large enough minority to elect a candidate of its choice. In other words, there was no 'White Bloc' operating in District 1. The Court rejected North Carolina's argument that this could occur in the future, especially since the entire state was being redrawn. The Court notes that the officials seemed to believe - - - incorrectly - - - that they were required to draw a majority Black district, despite any evidence of "cross-over."
image: Appendix 1 to Court's opinion;
note District 1 in yellow and District 12 in orange.
The Court divided on the constitutionality of District 12, however. The only issue was whether or not the redistricting was racial; North Carolina did not argue it could satisfy strict scrutiny if race predominated. Writing for the Court, Justice Kagan, joined by Justices Thomas, Ginsburg, Breyer, and Sotomayor, affirmed the findings of the three judge district court that District 12 was redrawn with reference to race. North Carolina contended that the officials redrew the district only with reference to political affiliation (which would not violate the Equal Protection Clause), arguing that the goal was to "pack" District 12 with Democrats (and thereby render other districts more Republican). Justice Kagan noted that the determination of whether an act was racially-motivated or politically-motivated involved a "sensitive inquiry" and that racial identification is "highly correlated" with political affiliation. But for the majority, the District Court's finding of racial predominance must be affirmed:
The evidence offered at trial, including live witness testimony subject to credibility determinations, adequately supports the conclusion that race, not politics, accounted for the district’s reconfiguration. And no error of law infected that judgment: Contrary to North Carolina’s view,the District Court had no call to dismiss this challenge just because the plaintiffs did not proffer an alternative design for District 12 as circumstantial evidence of the legislature’s intent.
Writing the dissenting opinion, Justice Alito, joined by Chief Justice Roberts and Justice Kennedy (who authored Bethune-Hill), vigorously contested the finding of racial intent. Alito faults the majority as well as the District Court as being obtuse: "The majority’s analysis is like Hamlet without the prince." This bit of snark in the body of the dissent, earns a rebuke from the majority in a footnote to its statement that this district is back before the Court for the sixth time, criticizing the dissent for simply adopting North Carolina's version: "Imagine (to update the dissent’s theatrical reference) Inherit the Wind retold solely from the perspective of William Jennings Bryan, with nary a thought given to the competing viewpoint of Clarence Darrow." In a counter footnote, Alito defends the opinion from merely accepting North Carolina's explanation.
The alternative map argument is also a point of contention. For the majority, it is one way of demonstrating that the redistricting officials acting on the basis of race:
If you were really sorting by political behavior instead of skin color (so the argument goes) you would have done—or, at least, could just as well have done—this. Such would-have, could-have, and (to round out the set) should-have arguments are a familiar means of undermining a claim that an action was based on a permissible,rather than a prohibited, ground.
But, the majority emphasizes, such strategies are "hardly the only way." For the dissent, a passage from Easley v. Cromartie, (2001) (Cromartie II), involving essentially the same district, is determinative: plaintiffs must show that the officials could have achieved their political goals in a manner with more racial balance.
Interestingly, in his brief concurring opinion, Justice Thomas references Cromartie II, in which he dissented. Thomas contends that Cromartie II misapplied the "deferential standard for reviewing factual findings," an error which the present decision "does not repeat."
May 22, 2017 in Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Opinion Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0)
Wednesday, April 19, 2017
The nine Justice Court heard oral arguments this morning in Trinity Lutheran Church of Columbia, Mo. v. Comer, involving a First Amendment Free Exercise Clause challenge to a denial of state funding that was based on Missouri's state constitutional provision prohibiting any state funds from being awarded to religious organizations.
The state Department of Natural Resources had denied the grant application of Trinity Lutheran Church for funds to purchase of recycled tires to resurface its preschool playground. The state officials had reasoned that supplying such funds would violate the state constitutional provision, a provision often called a Blaine Amendment, and which the attorney for Trinity Lutheran Church noted was often rooted in "anti-Catholic bigotry." In upholding the Missouri denial of resources the Eighth Circuit had relied in part on Locke v. Davey (2004), in which "the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology." For the Eighth Circuit, "while there is active academic and judicial debate about the breadth of the decision, we conclude that Locke" supported circuit precedent that foreclosed the challenge to the Missouri state constitutional provision.
Locke v. Davey arose frequently in the argument. The attorney for the church argued that Locke's "play in the joints" was pertinent, but distinguished the program in Locke as being more inclusive of religion. Justice Kennedy seemed to distinguish Locke v. Davey, stating that "this is quite different than Locke, because this is a status-based statute." Later, Chief Justice Roberts broached Locke, in a colloquy with James Layton, representing Missouri, who argued that Locke was a closer case than the present one because here the state's money was a "direct payment" to the church rather a scholarship to a student as in Locke. But Justice Kagan, evoking Locke, seemed troubled by Missouri's argument:
JUSTICE KAGAN: But here's the deal. You're right that this is a selective program. It's not a general program in which everybody gets money. But still the question is whether some people can be disentitled from applying to that program and from receiving that money if they are qualified based on other completely nonreligious attributes, and they're disqualified solely because they are a religious institution doing religious things. Even though they're not --they could --they could promise you, we're not going to do religious things on this playground surface, and you're still saying, well, no, you --you can't get the money.
Soon thereafter, Justice Kagan stated:
JUSTICE KAGAN: But I don't understand -I --I think I understand how the States' interests might differ some, but essentially this is a program open to everyone. Happens to be a competitive program, but everyone is open to compete on various neutral terms, and you're depriving one set of actors from being able to compete in the same way everybody else can compete because of their religious identification.
Layton, representing the State, also had his own status and the status of the litigation to discuss.
[Sotomayor]: Mr. Layton, I'm --I'm --I know the Court is very grateful that you took up the request of the Missouri Attorney General to defend the old position, but I --I am worried about the, if not the mootness, the adversity in this case. If the Attorney General is in favor of the position that your adversary is taking, isn't his appointment of you creating adversity that doesn't exist?
MR. LAYTON: Well, I don't know the answer to that --that, but let me --let me give some of the factual background here.
The Attorney General himself is recused because he actually appears on one of the briefs on the other side. The first assistant in this instance is the Acting Attorney General, and the Acting Attorney General, at a time before governor --the governor gave his new instruction, asked me to defend the position, because at that point, it was still the position of the State, and was not being disavowed.
JUSTICE SOTOMAYOR: Well, but that's the question. It doesn't appear to be the position of the State right now. Reading through the lines of the Acting Attorney General to us, it doesn't appear that he believes that you're taking the right position.
The problem of whether the case is moot because the Governor of Missouri announced this week a change of policy was the subject of a Court instruction to the attorneys to respond by letter regarding the issue. It dominated very little of the discussion, but Chief Justice Roberts did ask this:
CHIEF JUSTICE ROBERTS: You --do you agree that this --this Court's voluntary cessation policies apply to the mootness question?
MR. LAYTON: I agree . . .
Justice Gorsuch, new to the bench this week, then brought the matter back to the substantive issue.
Whether or not the Court will dismiss the case or rule on the merits was not evident from the oral argument, although it did seem as if there was not much enthusiasm for Missouri's now-previous position that prevailed in the Eighth Circuit.
The United States Supreme Court's opinion in Nelson v. Colorado opened with this seemingly simple question:
When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction?
Writing for the six Justice majority, Justice Ginsburg provided an equally simple response: "Our answer is yes."
The statutory scheme, Colorado's Compensation for Certain Exonerated Persons, provided the "exclusive process" for seeking a refund of costs, fees, and restitution according to the Colorado Supreme Court. However, recovery under this Exoneration Act applied "only to a defendant who has served all or part of a term of incarceration pursuant to a felony conviction, and whose conviction has been overturned for reasons other than insufficiency of evidence or legal error unrelated to actual innocence." The petitioners in the case were not within this category: one was convicted, had her conviction reversed, and was acquitted on retrial; the other was convicted, had one conviction reversed on appeal and another conviction vacated on postconviction review, and the state elected not to retry. The first petitioner was assessed more than $8,000 in costs, fees, and restitution and had $702.10 deducted from her inmate account while she was in jail; the second petitioner was assessed more than $4,000 in costs, fees, and restitution and paid the state $1977.75.
Justice Ginsburg's concise opinion articulates and applies the well-established balancing test for procedural due process from Matthews v. Eldridge (1976), under which a court evaluates a court evaluates (A) the private interest affected; (B) the risk of erroneous deprivation of that interest through the procedures used; and (C) the governmental interest at stake.
The Court rejected Colorado's claim that the petitioners' had no private interest in regaining the money given that the convictions were "in place" when the funds were taken. Justice Ginsburg concluded that it makes no difference whether the initial court or a reviewing court adjudged the petitioners not guilty. To rule otherwise would be inconsistent with the presumption of innocence notion fundamental to "our criminal law." As to the risk of erroneous deprivation, Justice Ginsburg made clear that the risk was high and stressed that the petitioners were seeking refund rather than "compensation for temporary deprivation" of those funds such as interest. Finally, Justice Ginsburg's opinion for the Court found that Colorado has "no interest in withholding" the money "to which the State currently has zero claim of right."
Justice Alito, writing in a concurring opinion only for himself, contended that the correct standard was not Matthews v. Eldridge, but Medina v. California (1992) as Colorado had argued. For Alito, Medina was the correct standard because the refund obligation was part of the criminal process, especially pertinent with reference to restitution. Nevertheless, Alito concluded that even under Medina, stressing an historical inquiry, the Colorado statute failed due process: placing a heavy burden on criminal defendants, providing no opportunity for misdemeanor convictions, and excluding all but claims for actual innocence.
Justice Thomas, also writing only for himself, issued a dissenting opinion, arguing that the issue is whether the petitioners can show a "substantive" entitlement to a return of the money they paid. He concludes that they have no "substantive" right because once the petitioners paid the money - - - however wrongly - - - it became public funds to which they had no entitlement. Thus, because the "Due Process Clause confers no substantive rights," the petitioners have no right to a refund, despite the "intuitive and rhetorical appeal" of such a claim.
While the statute was amended to include vacated convictions effective September 2017, such an amendment may not be comprehensive enough to save the statutory scheme. While the Court does not discuss the widespread problem of carceral debt, there is a burgeoning scholarship on this issue.
[image: "A debtor in Fleet Street Prison, London" by Thomas Hosmer Shepherd, circa first half of the 19th century, via].
Sunday, March 5, 2017
Reversing the district judge, the D.C. Circuit's opinion in United States v. Bronstein upheld the prohibition of certain speech in the United States Supreme Court against a challenge that it was unconstitutionally vague and thus violated the Fifth Amendment's Due Process Clause.
The statute, 40 U.S.C. § 6134, entitled “Firearms, fireworks, speeches, and objectionable language in the Supreme Court Building and grounds,” provides:
It is unlawful to discharge a firearm, firework or explosive, set fire to a combustible, make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds.
The district judge had found that “harangues” and “orations” are terms that “cannot be determined without reference to subjective perceptions and individual sensitivities," and thus the statute was not sufficiently precise. The unanimous D.C. Circuit panel found that the statute's
core meaning is delivering speeches of various kinds to persons within the Supreme Court’s building and grounds, in a manner that threatens to disturb the operations and decorum of the Court. In the context of the Supreme Court’s building and grounds, the terms’ core meaning proscribes determinable conduct.
Moreover, the court found that "while “harangue” and “oration” may not roll off the average person’s tongue today," this "does not alter their possession of a settled meaning around public speeches." The general sense is "making a speech to a public assembly," and based on the title of the statute, the sense is clear that this pertains to "noises" intended to "disrupt the court's operations."
In its application, the opinion by Judge Janice Rogers Brown somewhat oddly includes a cinematic reference:
Turning to the facts here, a person of ordinary intelligence could read this law and understand that, as a member of the Supreme Court’s oral argument audience, making disruptive public speeches is clearly proscribed behavior—even in staccato bursts, seriatim. And yet, in a coordinated fashion, each Appellee is alleged to have directed a variation of the same message to the Justices of the Supreme Court and the assembled audience. Their coordinated standing, facing the bench, and messaging indicate the Appellees were addressing the Court and gallery. Cf. MY COUSIN VINNY (20th Century Fox 1992) (Judge Chamberlain Haller: “Don’t talk to me sitting in that chair! . . . When you’re addressing this court, you’ll rise and speak to me in a clear, intelligible voice.”). Viewed objectively, these alleged acts could easily be considered speeches to a public assembly that tended to disrupt the Court’s operations—conduct covered by § 6134’s prohibition of “make a harangue or oration.”
Earlier in the Bronstein opinion, joined by Judge Srinivasan and Senior Judge Williams, Judge Brown does provide more of the substance of the speeches which included objections to Citizens United and the legal construction of money as speech. Judge Brown notes that the protest occurred on "April Fools Day of 2015;" the protest group describes the timing as being on the eve of the one year anniversary of McCutcheon v. FEC. (There were no arguments on April 2, the actual anniversary, or the day after).
While a due process decision, Bronstein is consistent with judicial rejection of First Amendment challenges to statutes prohibiting expression in and around the United States Supreme Court. We've previously discussed the "special status" of the United States Supreme Court building, the Supreme Court's efforts to ensure its regulations were constitutional, as well as the D.C. Circuit's opinion in Hodge v. Talkin (2015) which upheld the constitutionality of statutory prohibitions of assembly and display of flags or signs on the United States Supreme Court plaza, and the arrest of a person for wearing a jacket with the word "Occupy" on it.
Wednesday, March 1, 2017
In its opinion in Bethune-Hill v. Virginia State Board of Elections, the Court clarified the standard for deciding whether racial considerations in reapportionment violate the Equal Protection Clause. It affirmed the three-judge court's decision as to one of the districts as constitutionally considering race, but remanded the determination of the constitutional status of the other eleven districts.
Recall that the challenge was to the three-judge court’s decision and order holding that a number of Virginia House of Delegates districts did not constitute unlawful racial gerrymanders in violation of the Equal Protection Clause. Virginia did consider race in the redistricting, but the question was whether race was the predominant (and thus unconstitutional) consideration. The three-judge lower court required an “actual” conflict between the traditional redistricting criteria and race.
In the opinion authored by Justice Kennedy, and joined by Chief Justice Roberts, as well as Justices Ginsburg, Breyer, Sotomayor, and Kagan, the Court clarified the relationship between traditional redistricting principles and unconstitutional racial gerrymandering:
The Equal Protection Clause does not prohibit misshapen districts. It prohibits unjustified racial classifications.
More precisely, although there is a racial classification if "redistricting legislation that is so bizarre on its face that it is unexplainable on grounds other than race," as in Shaw v. Reno, (1993), this "inconsistency between the enacted plan and traditional redistricting criteria is not a threshold requirement or a mandatory precondition in order for a challenger to establish a claim of racial gerrymandering." The Court admitted that "to date " it had not affirmed a racial predominance finding, or remanded a case for a determination of predominance, "without evidence that some district lines deviated from traditional principles." Nevertheless, "there may be cases where challengers will be able to establish racial predominance in the absence of an actual conflict by presenting direct evidence of the legislative purpose and intent or other compelling circumstantial evidence."
Given this articulation of the standard, the three-judge court's analysis of whether there was racial gerrymandering applied only to the portions of the districts that deviated from traditional requirements was clearly problematical. Indeed,
the basic unit of analysis for racial gerrymandering claims in general, and for the racial predominance inquiry in particular, is the district.
The ultimate object of the inquiry, however, is the legislature’s predominant motive for the design of the district as a whole. A court faced with a racial gerrymandering claim therefore must consider all of the lines of the district at issue; any explanation for a particular portion of the lines, moreover, must take account of the district wide context. Concentrating on particular portions in isolation may obscure the significance of relevant district wide evidence, such as stark splits in the racial composition of populations moved into and out of disparate parts of the district, or the use of an express racial target. A holistic analysis is necessary to give that kind of evidence its proper weight.
The Court declined the parties' request to apply this standard and remanded the matter of eleven districts.
As to the twelfth district (district 75), the Court affirmed the three-judge court's finding that race predominated but also that the redistricting satisfied strict scrutiny. The Court found that not violating §5 of the Voting Rights Act - - - operative then despite the VRA's subsequent erosion in Shelby County v. Holder - - - was a compelling government interest and that the district was narrowly tailored to serve that interest. In his partial dissent, Justice Thomas insisted that this very analysis "is fundamentally at odds with our “color-blind” Constitution, which “neither knows nor tolerates classes among citizens,” citing Plessy v. Ferguson (1896) (Harlan, J., dissenting). Justice Thomas then argued that this "contradiction illustrates the perversity of the Court’s jurisprudence in this area as well as the uncomfortable position in which the State might find itself."
Despite the articulation of a somewhat new standard, Bethune-Hill does not seem to be a major opinion and the Court states its "holding in this case is controlled by precedent." Interestingly, the Court did not issue its opinion on the other racial gerrymandering case, McCrory v. Harris, arising in North Carolina and argued on the same day.
Tuesday, February 28, 2017
District Judge Finds School District's Exclusionary Bathroom Policy Likely Violates Equal Protection
In his well-reasoned and comprehensive 48 page opinion in Evancho v. Pine-Richland School District, Judge Mark Hornak of the Western District of Pennsylvania has issued a preliminary injunction against a school policy that limits students to facilities that "correspond to their biological sex" or to "unisex facilities," finding that the policy likely violates the Fourteenth Amendment's Equal Protection Clause.
The Pittsburgh-area school district passed Resolution 2 in 2016 by a close vote (5-4), after Resolution 1 which would have preserved the status quo failed to pass in a tied vote (4-4), after meetings and after some sporadic parental complaints. The policy seemed focused on three transgender students, including the named plaintiff Juliet Evancho, the sister of Jackie Evancho who sang at the President's January inauguration. As Judge Hornak relates, before 2016 "there were simply no issues or concerns" about the plaintiffs and everyone in the school district treated the students "consistently with their gender identities." He added that the "most distinctive and illustrative evidence of this is that Juliet Evancho ran for Homecoming Queen in 2016, and she was elected by her peers to the “Homecoming Court” of ﬁnalists for that honor."
After extensively discussing the record, including the school district's privacy concerns, Judge Hornak found there was a indeed a classification being made, the plaintiffs being "distinguished by governmental action from those whose gender identities are congruent with their assigned sex" and the "only students who are not allowed to use the common restrooms consistent with their gender identities.” Later in the opinion, Judge Hornak discussed the unsatisfactory solution of the "safety valve" of unisex facilities:
the law does not impose on the Plaintiffs the obligation to use single-user facilities in order to “solve the problem.” In these circumstances, that would compel them to use only restrooms inconsistent with their gender identities or to use the “special” restrooms. That is a choice directed by official edict, and it is not a choice compelled of other students. It is no answer under the Equal Protection Clause that those impermissibly singled out for differential treatment can, and therefore must, themselves “solve the problem” by further separating themselves from their peers.
As to the Equal Protection standard to be applied, Judge Hornak first discussed rational basis but decided that the intermediate scrutiny standard of United States v. Virginia (VMI) for sex classifications was applicable. The selection of standard rested on the conclusion that "transgender status" is the "epitome of gender noncomformity" and discrimination based on transgender status is "akin to discrimination based on sex." Additionally, the opinion recited factors determining whether a "new" classification deserves heightened scrutiny.
In applying the standard, Judge Hornak found that the record did not establish facts that demonstrated there was an important government interest or exceedingly persuasive justification that was substantially related to those interests:
First, such an application of Resolution 2 would not appear to be necessary to quell any actual or incipient threat, disturbance or other disruption of school activities by the Plaintiffs. There is no record of any such thing. ****
Second, Resolution 2 would appear to do little to address any actual privacy concern of any student that is not already well addressed by the physical layout of the bathrooms. The District has stated that Resolution 2 is necessary to protect the privacy of students (presumably including the Plaintiffs), by which the District has stated it means the sanctity of excretory functions. The record simply does not reveal any actual risk (or even an actual risk of a risk) in such regards. ****
Third, Resolution 2 would not appear to have been necessary in order to fill some gap in the District’s code of student conduct or the positive law of Pennsylvania in order to proscribe unlawful malicious “peeping Torn” activity by anyone pretending to be transgender.” There is no evidence of such a gap. The existing disciplinary rules of the District and the laws of Pennsylvania would address such matters. And as noted above, there is no record evidence of an actual or threatened outbreak of other students falsely or deceptively declaring themselves to be “transgender” for the purpose of engaging in untoward and maliciously improper activities in the High School restrooms.”
Fourth, such application of Resolution 2 also would not appear to be supported by any actual need for students to routinely use the comers of the restrooms for changing into athletic gear from street clothes.
Interestingly, this last consideration seems to have arisen from a "hypothetical matching a personal experience from his own school days" asserted by counsel for the school district. (Evidence and Professional Responsibility Professors might take note of this). Judge Hornak opined that perhaps that "reported anecdotal evidence can be treated" as being a "plausible historical recitation of life events," but there was no "record evidence" that this was the situation in the district.
While Judge Hornak found that the plaintiffs would prevail on the Equal Protection Clause claim, the judge did not find a likelihood of success on the Title IX claim in light of the pending Supreme Court case of Gloucester County School Board v. G.G., oral argument scheduled later this month. Section IV of the Judge Hornak's opinion, about 10 pages, coupled with the preliminary footnote regarding the recent Department of Education activities, is an excellent overview of the GG litigation including the pertinent issues.
Judge Hornak's opinion is also an excellent reminder that whatever might happen in GG at the Supreme Court, there are remaining equal protection issues. Recall that although the Fourth Circuit in GG centered on Title IX and the administrative law issues, Count I of the original complaint in GG is an equal protection claim.
video: from Lambda Legal representing Evancho
Monday, February 27, 2017
There are at least two letters circulating amongst law professors regarding Neil Gorsuch's nomination to Associate Justice on the United States Supreme Court.
The opposition letter, available here, stresses Gorsuch's "judicial philosophy," as, "in his own words" "focusing backward, not forward.” With references to specific cases, it argues that Gursuch lacks "the necessary commitment to independence to hold government officials accountable," that he will "undermine reproductive rights," that he repeatedly "sides with big corporations over workers' rights," that he has "undermined federal laws meant to protect persons with disabilities," and that he will hamper agencies' ability to enforce Congressional laws meant to protect environmental and health safety.
The supporting letter, available here, stresses Gorsuch's qualifications, his "fairness and integrity, his analytical rigor, and his persuasive writing." It describes him as a "scholar and a teacher" whose views fall well within the bounds of modern jurisprudence.
The supporting letter, although brief, also tackles an issue unmentioned by the opposition letter: the previous nominee's treatment. The supporting letter states:
In closing, we note how little good comes from playing politics with judicial nominations. In his 2016 Year End Report, Chief Justice Roberts asked “why any lawyer would want a job that requires long hours, exacting skill, and intense devotion – while promising high stress, solitary confinement, and guaranteed criticism.” The political gauntlet that judicial nominations have become – highlighted most recently by the Senate’s outright refusal to consider the nomination of Judge Merrick Garland, also a brilliant judge eminently qualified for the Supreme Court – underscores this concern. Nominees expose themselves and their families to the withering glare of the modern media cycle and to political fortunes unconnected to their merit for the position. Senators of both parties employ arguments to delay and block nominees of the other party’s President, only to denounce these tactics when political fortunes are reversed. Litigants who depend on the efficient functioning of the courts to see justice done ultimately pay the price.
Law Professors wishing to sign one or the other of the letters should do so quickly.
image: Donald Trump nominates Neil Gorsuch to the United States Supreme Court via.
Friday, December 9, 2016
In a closely divided (4-3) opinion in Smith v. Pavan, the Arkansas Supreme Court concluded that the state statutes governing the issuance of birth certificates to children could deny same-sex parents to be listed as parents.
Essentially, the majority opinion, authored by Associate Justice Josephine Hart found that the United States Supreme Court's 2015 decision in Obergefell v. Hodges declaring same-sex marriage bans unconstitutional was inapposite:
Obergefell did not address Arkansas’s statutory framework regarding birth certificates, either expressly or impliedly. Rather, the United States Supreme Court stated in Obergefell that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.
Justice Hart noted that the Court in Obergefell did mention birth certificates "only once" and quoted the passage, construing it being related "only" to the Court's observation that states conferred benefits on married couples, which in part demonstrated that “ the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”
Not surprisingly, dissenting justices construed this same passage as providing support for the opposite conclusion. In a well-wrought dissent by Justice Paul Danielson, he argues:
[T]he United States Supreme Court held in Obergefell that states are not free to deny same-sex couples “the constellation of benefits that the States have linked to marriage.” Importantly, the Court listed “birth and death certificates” specifically as one of those benefits attached to marital status. Thus, the majority is clearly wrong in holding that Obergefell has no application here. Indeed, one of the cases on review in Obergefell, Tanco v. Haslam, 7 F. Supp. 3d 759 (M.D. Tenn. 2014), rev’d sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), involved a same-sex married couple who challenged the Tennessee law providing that their child’s nonbiological parent would not be recognized as the child’s parent, which affected various legal rights that included the child’s right to Social Security survivor benefits, the nonbiological parent’s right to hospital visitation, and the nonbiological parent’s right to make medical decisions for the child.
Furthermore, one of the four principles discussed by the Court in Obergefell, for purposes of demonstrating that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples, is that the right to marry “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” The opinion makes clear that the protection of children and the stability of the family unit was a foundation for the Court’s decision.
[citations to Obergefell omitted].
For the majority, biology was the paramount "truth" that vital records should reflect. Moreover, this "truth" is evinced in dictionary definitions of words such as "husband" and "father," a strategy in cases that Obergefell rejected.
However, the relevance of Smith v. Pavan even in Arkansas is unclear. As Justice Rhonda Wood argued, the case may not have warranted a decision by the court:
Two key circumstances have developed since this litigation started. First, plaintiffs received relief in that the State has issued the appropriate birth certificates to them. Second, the State concedes that the relevant statutes involving determination of parentage must comply with Obergefell, including the statute governing the status of people born via artificial insemination. These developments render the majority’s decision provisional.
Moreover, there were (new) facts in dispute, despite the procedural posture of summary judgment:
First, according to the affidavit of the State Registrar of Vital Records, the Department of Health will issue birth certificates listing both same-sex parents if the hospital submits documentation reflecting that fact. However, the parties disputed at oral argument how the department’s decision is actually being applied. There are no facts in the record to resolve this dispute. Moreover, the State has now conceded that children born of artificial insemination should have both parents deemed the natural parents, whether same-sex or opposite sex, under Ark. Code Ann. § 9-10-201 (Repl. 2015) and asserts that it will place both same-sex parents on the birth certificate under the State’s new interpretation of this statute. This statute provides that “[a]ny child born to a married women by means of artificial insemination shall be deemed the legitimate natural child of the women and the women’s husband [read spouse] if the [spouse] consents in writing to the artificial insemination.” Ark. Code Ann. § 9-10-201(a). It is likely, therefore, that a same-sex couple will now have both spouses’ names listed on the original birth certificate without a court order, so long as the child was conceived via artificial insemination, the same-sex marriage occurred prior to the insemination, and the non-biological parent consented to the insemination. Appellants and appellees both conceded at oral argument this would resolve the challenge by two of the three same-sex marriage couples.
It is possible that Arkansas would revoke its concessions given the state supreme court's ruling, but if the state does, then this seems a clear case for a petition for certiorari to the United States Supreme Court.
[image: Arkansas Supreme Court building]
December 9, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Opinion Analysis, Recent Cases, Reproductive Rights, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0)
Thursday, December 1, 2016
It's time again for Constitutional Law final exam. In previous posts, such as here, we've discussed the common strategy of using current controversies as exam material, and have highlighted the best practices regarding final exam drafting, including the baseline that the exam question must include ALL the specific material and explanations that a student would need to answer the question and not rely upon extraneous information that not all students might share.
This end-of-semester, the President-Elect has provided ample fodder for exam material.
A good place to start would be the ACLU Report entitled The Trump Memos, a 27 page discussion of issues of immigration, creation of a Muslim "database," torture, libel, mass surveillance, and abortion. Embedded in many of these issues are constitutional structural considerations involving federalism (e.g., sanctuary cities) and separation of powers (building "the wall).
For First Amendment issues, augmenting the ACLU's libel discussion with the ABA section article about Trump as a "libel bully" provides lots of material. There is also the recent "flag-burning" tweet, though this may be too simple given the precedent, although it could be combined with the lesser known doctrine regarding denaturalization, as we discuss here.
Lesser known doctrine that may not have been covered this semester (but presumably would be covered next semester) includes the Emoluments Clause, given Trump's many possible conflicts, as we've mentioned here and here. Additionally, some argue that the "election" is not "over": recounts are occurring and there are calls for the Electoral College to select the popular vote winner as President. The problems with the voting and the election could also provide exam material; there are also interesting equal protection voting cases such as the recent Ninth Circuit en banc case.
While Trump looms large on the constitutional landscape, there are also some interesting cases before the United States Supreme Court, in which the issues are more focused.
Tuesday, November 29, 2016
The United States Supreme Court has held that flag burning as expressive speech is protected by the First Amendment and that loss of citizenship is not a constitutional punishment for a crime.
In Texas v. Johnson (1989), the Court declared:
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. . . . In short, nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it.. . . There is, moreover, no indication -- either in the text of the Constitution or in our cases interpreting it -- that a separate juridical category exists for the American flag alone. Indeed, we would not be surprised to learn that the persons who framed our Constitution and wrote the Amendment that we now construe were not known for their reverence for the Union Jack. The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole -- such as the principle that discrimination on the basis of race is odious and destructive -- will go unquestioned in the marketplace of ideas. . . .
We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag -- and it is that resilience that we reassert today.
The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.
To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to bee applied is more speech, not enforced silence.
Whitney v. California(1927) (Brandeis, J., concurring). And, precisely because it is our flag that is involved, one's response to the flag-burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by -- as one witness here did -- according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.
During the oral argument in Texas v. Johnson, the late Justice Scalia, who joined the Court's opinion, expressed scorn for the notion that the flag should be insulated from the First Amendment protections of speech. In a colloquy with the attorney for the State of Texas, Justice Scalia wondered if Texas could similarly criminalize desecration of the state flower, the blue bonnet. Scalia then remarked:
Well, how do you pick out what to protect?
I mean, you know, if I had to pick between the Constitution and the flag, I might well go with the Constitution.
As for the constitutionality of "loss of citizenship" as punishment for a criminal violation, the United States Supreme Court, in Trop v. Dulles (1958), declared that "Citizenship is not a license that expires upon misbehavior." In considering a statute that revoked citizenship for desertion by a member of the armed forces, the Court stated that the
use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights.
This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.
The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.
Thus it seems that the president-elect's sentiment is at odds with our constitutional precedent.
Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!— Donald J. Trump (@realDonaldTrump) November 29, 2016
Friday, October 28, 2016
The Court today has granted certiorari in Glouster County School Board v. G.G.
As we previously discussed, while the constitutional issues are not in the foreground, it does involve important equality issues for transgender and gender nonconforming students as well as issues of Exceutive - - - or perhaps more properly, administrative agency - - - power.
The Court's Order limits the grant to Questions 2 and 3, thus eliminating the issue of the viability of "Auer deference" from consideration. The Questions presented in the certiorari petition are:
(1) Whether the court should retain the Auer v. Robbins doctrine despite the objections of multiple justices who have recently urged that it be reconsidered and overruled;
(2) whether, if Auer is retained, deference should extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and
(3) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.
Friday, October 14, 2016
In its opinion in National Institute of Family and Life Advocates v. Harris, the Ninth Circuit rejected a First Amendment challenge to the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, the FACT Act. The FACT Act mandates that licensed pregnancy-related clinics, including crisis pregnancy centers that specifically discourage abortion and employ "deceptive advertising and counseling practices" related to the availability of abortion, disseminate a notice stating the availability of publicly-funded family-planning services that include contraception and abortion. Additionally, the FACT Act requires unlicensed clinics provide notice that they are not licensed.
Recall that mandatory disclosures by pregnancy crisis centers has previously been considered in Circuit opinions. In The Evergreen Association, Inc. d/b/a Expectant Mother Care Pregnancy Centers v. City of New York, a divided panel of the Second Circuit in 2014 ruled that only one of the three major provisions of NYC's Local Law 17 seeking to mandate disclosures by pregnancy crisis centers was constitutional. The en banc Fourth Circuit has also rules: First, in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore, it reversed the granting of a preliminary injunction finding fault with the application of the summary judgment standard by the district judge, and second in Centro Tepeyac v. Montgomery County, affirmed a finding that one of the mandated disclosures was constitutional and the other was not.
The Ninth Circuit opinion, authored by Judge Dorothy W. Nelson, rejected the argument that the mandated notice of other services available for pregnancy to be afforded by licensed facilities (the "Licensed Notice") should be subject to strict scrutiny because "all" content-based regulations should be subject to strict scrutiny, notwithstanding the United States Supreme Court's decision in Reed v. Town of Gilbert (2015). Judge Nelson's opinion noted that abortion regulation and the practice of medicine have been subject to "reasonable regulation" even when speech is involved. Instead, the Ninth Circuit unanimous panel took as precedent its ruling in Pickup v. Brown regarding prohibition of sexual conversion therapy and the concept of "professional speech":
We now turn to the correct level of scrutiny to apply to the Licensed Notice and conclude that under our precedent in Pickup, intermediate scrutiny applies. Licensed Clinics are not engaging in a public dialogue when treating their clients, and they are not “constitutionally equivalent to soapbox orators and pamphleteers.” Pickup. Thus, it would be inappropriate to apply strict scrutiny. And, unlike in Pickup, the Licensed Notice does not regulate therapy, treatment, medication, or any other type of conduct. Instead, the Licensed Notice regulates the clinics’ speech in the context of medical treatment, counseling, or advertising.
Because the speech here falls at the midpoint of the Pickup continuum, it is not afforded the “greatest” First Amendment protection, nor the least. It follows, therefore, that speech in the middle of the Pickup continuum should be subject to intermediate scrutiny.
In applying intermediate scrutiny, Judge Nelson found that
California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally-protected medical services like abortion. The California Legislature determined that a substantial number of California citizens may not be aware of, or have access to, medical services relevant to pregnancy. * * * *
We conclude that the Licensed Notice is narrowly drawn to achieve California’s substantial interests. The Notice informs the reader only of the existence of publicly-funded family-planning services. It does not contain any more speech than necessary, nor does it encourage, suggest, or imply that women should use those state-funded services. The Licensed Notice is closely drawn to achieve California’s interests in safeguarding public health and fully informing Californians of the existence of publicly-funded medical services. And given that many of the choices facing pregnant women are time-sensitive, such as a woman’s right to have an abortion before viability, we find convincing the AG’s argument that because the Licensed Notice is disseminated directly to patients whenever they enter a clinic, it is an effective means of informing women about publicly-funded pregnancy services.
Additionally, the panel found that the Unlicensed Notice - - - the mandated disclosure that a facility is not licensed - - - survives every level of scrutiny, even strict scrutiny.
The Ninth Circuit panel opinion acknowledged that it was in agreement with the Second and Fourth Circuits on the Unlicensed Notice provision, but that the Second and Fourth Circuits had applied a higher level of scrutiny to similar mandated disclosures and found that they were not constitutional.
There is thus an arguable split amongst the circuits on the subject of mandated disclosures by so-called pregnancy crisis centers, with the Ninth Circuit's conceptualization of "professional speech" again ripe for a certiorari petition to the United States Supreme Court.
Tuesday, October 4, 2016
In the continuing - - - yet seemingly concluding - - - saga of challenges to the constitutionality of California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit's opinion today in Welch v. Brown revisited its August opinion upholding the law. Today's opinion announces that the Ninth Circuit will not rehear the case en banc - - - "no judge of the court" having requested a vote on the petition for rehearing en banc - - - and issues an amended opinion.
The change from the August opinion is slight, adding an example in the opinion's description of the challengers' argument in one paragraph:
Plaintiffs first argue that, under the Establishment Clause, SB 1172 excessively entangles the State with religion. Their argument rests on a misconception of the scope of SB 1172. For example, Plaintiffs assert that Dr. Welch may not “offer certain prayers or quote certain Scriptures to young people” even “while working as a minister for Skyline Church” within “the four walls of the church . . ., while engaging in those religious activities.” The premise of this Establishment Clause argument is mistaken, and the argument fails, because SB 1172 regulates conduct only within the confines of the counselor-client relationship.
[Added language underlined; italics in both opinions].
With such a small revision, it would seem there was little contention about the case. Recall that Welch itself is a sequel to Pickup v. Brown, in which the Ninth Circuit declined en banc review (albeit more divisively), to other First Amendment challenges to the California statute. Meanwhile, the Third Circuit in King v. Christie rejected a challenge to New Jersey's similar SOCE-ban statute. The United States Supreme Court has denied certiorari in both Pickup and King, making prospects for a grant of certiorari in Welch v. Brown rather slim, especially for an eight Justice Court.
October 4, 2016 in Family, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0)
Thursday, September 29, 2016
In Lee v. Tam, the Court will consider whether the disparagement provision in Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), barring the Patent and Trademark Office from registering scandalous, immoral, or disparaging marks, violates the First Amendment. Recall that the en banc Federal Circuit held the provision invalid in In Re Simon Shiao Tam, in which the central issue was the denial of a trademark registration to "The Slants" by the applicant Simon Shiao Tam, on behalf of the Portland, Oregon "all Asian American dance rock band." Looming large but in the background are controversies regarding the names of athletic teams that many believe are disparaging.
In Expressions Hair Design v. Schneiderman, the Court will consider a New York state law prohibiting credit-card surcharges infringes free speech. Recall that while the expressive element in the challenge to pricing regulation is not immediately obvious, one articulation of the issue is that while "price" is not expressive, the statute actually bans an expressive label it disfavors ("credit-card discount") while permitting one a label it approves ("cash discount"). The district judge found this persuasive and held the law unconstitutional, while the Second Circuit reversed. Moreover, similar issues have reached the Eleventh and Fifth Circuits, with a split amongst the courts.
Monday, September 19, 2016
In its divided opinion in Lund v. Rowan County, North Carolina, the Fourth Circuit has held that the identity of the person leading a prayer opening the county Board of Commissioners meeting is irrelevant - - - even a prayer led by a Board member is within the ambit of Town of Greece v. Galloway (2014) and without a First Amendment Establishment Clause problem.
As the majority opinion, authored by Judge Steven Agee and joined by Judge Dennis Shedd, describes it:
At most Board meetings, the chairperson would call the meeting to order and invite the Board and audience to stand for the ceremonial opening. A designated commissioner would then deliver an invocation of his or her choosing followed by the pledge of allegiance. The content of each invocation was entirely in the discretion of the respective commissioner; the Board, as a Board, had no role in prayer selection or content. The overwhelming majority of the prayers offered by the commissioners invoked the Christian faith in some form. For example, prayers frequently included references to “Jesus,” “Christ,” and “Lord.” It was also typical for the invocation to begin with some variant of “let us pray” or “please pray with me.” Id. Although not required to do so, the audience largely joined the commissioners in standing and bowing their heads during the prayer and remained standing for the pledge of allegiance.
The litigation was begun before the United States Supreme Court issued its sharply divided opinion in Town of Greece v. Galloway upholding the practice of the town beginning its meetings with invited religious leaders providing prayers. The Court essentially extended Marsh v. Chambers (1983), regarding legislative prayer in the Nebraska legislature, to town meetings despite their quasi-legislative and quasi-adjudicative function. The Fourth Circuit extends Town of Greece to prayers by the elected officials (and arguably adjudicators) themselves: "the Supreme Court attached no significance to the speakers' identities in its analysis" of either Town of Greece or Marsh. Indeed, as the Fourth Circuit majority notes, Justice Kennedy writing for the plurality in Town of Greece averred that the "principal audience" for the prayers is not the public but "lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing." The Fourth Circuit therefore found that the district judge's conclusion that legislative prayer led by a legislator violates the Establishment Clause.
Judge Agee's opinion for the Fourth Circuit majority then took up the question of whether "some other facet" of the Board of Commissioner's praying practice took it "outside the protective umbrella of legislative prayer." These four "guideposts" included the selection of the legislative prayer, the content of the prayer, selection of the prayer-giver, and the effect of the prayer "over time" as advancing a particular religion. Judge Agee's opinion rejected each of these concerns. First, the selection of the legislative prayer was not done by the "Board as a whole," but each of the five commissioners was in effect "a free agent." Second, the majority found the content not objectionable because it did not cross the line into proselytizing: "There is no prayer in the record asking those who may hear it to convert to the prayer-giver’s faith or belittling those who believe differently. And even if there were, it is the practice as a whole -- not a few isolated incidents -- which controls." Third, the selection of the prayer-givers was not problematic, even though it was limited to the five commissioners. The majority opinion here comes close to requiring a type of specific motive: "Absent proof the Board restricted the prayer opportunity among the commissioners as part of an effort to promote only Christianity, we must view its decision to rely on lawmaker-led prayer as constitutionally insignificant." Fourth and last, the majority found no problem based on its analogies to Town of Greece and Marsh, in which the prayers were overwhelmingly Christian.
For Judge J. Harvie Wilkinson III, dissenting, the prayer practices of the Rowan County Commissioners crossed the constitutional line into a violation of the Establishment Clause. Wilkinson, whose forthcoming book argues that the 1960s were damaging "to our need for the sustenance of faith," here concludes that Rowan County is not welcoming to various faiths. He does not argue that the commissioner as prayer-leader is determinative, but it is one of the factors that distinguishes the Rowan County practice from Town of Greece, that makes it "a conceptual world apart." For Wilkinson:
I have seen nothing like it. This combination of legislators as the sole prayer-givers, official invitation for audience participation, consistently sectarian prayers referencing but a single faith, and the intimacy of a local governmental setting exceeds even a broad reading of Town of Greece. That case in no way sought to dictate the outcome of every legislative prayer case.
Wilkinson's opinion provides several examples that the plaintiffs, all non-Christians, found "overtly sectarian," including:
Our Heavenly Father, we will never, ever forget that we are not alive unless your life is in us. We are the recipients of your immeasurable grace. We can’t be defeated, we can’t be destroyed, and we won’t be denied, because of our salvation through the Lord Jesus Christ. I ask you to be with us as we conduct the business of Rowan County this evening, and continue to bless everyone in this room, our families, our friends, and our homes. I ask all these things in the name of Jesus, Amen.”
Judge Wilkinson noted that the "closed universe" of prayer-givers - - - the five Commissioners - - - over a period of years had led to a constriction in the religious identities represented that could communicate a message of non-belonging to citizens coming before the Board. But Wilkinson's concern also extended into a concern about representative secular democracy itself:
Entrenching this single faith reality takes us one step closer to a de facto religious litmus test for public office. When delivering the same sectarian prayers becomes embedded legislative custom, voters may wonder what kind of prayer a candidate of a minority religious persuasion would select if elected. Failure to pray in the name of the prevailing faith risks becoming a campaign issue or a tacit political debit, which in turn deters those of minority faiths from seeking office. It should not be so.
The United States Supreme Court's now-eight Justices may not be eager to welcome another government prayer case into the docket so soon after the 5-4 decision Town of Greece, especially one that might result in a 4-4 split, affirming the Fourth Circuit's opinion. And yet? Perhaps the Rowan County Board of Commissioners prayer practices might be a step too far for one of the Justices who joined the Court's majority in Town of Greece? Or perhaps for the Fourth Circuit en banc?