Thursday, June 18, 2015
A unanimous Court, albeit with separate opinions, concluded that the extensive municipal signage regulations violated the First Amendment in Reed v. Town of Gilbert.
Recall from oral arguments that the town's regulations generally required a permit to erect a sign, with nineteen different exemptions including “Temporary Directional Signs Relating to Qualifying Event.” The exemption for these temporary directional signs further specifies that such signs "shall be no greater than 6 feet in height and 6 square feet in area,”and “shall only be displayed up to 12 hours before, during and 1 hour after the qualifying event ends.” Although the challenge involves a church sign, this was largely irrelevant. Instead the content at issue is the sign’s directional nature, if indeed "directions" is a matter of content. In a divided opinion the Ninth Circuit upheld the town regulation as content neutral.
Reversing the Ninth Circuit, Justice Thomas, writing for the Court, concluded that the Sign Code was content-based and did not survive strict scrutiny. The Sign Code provision is content-based because, simply put, to determine if a sign is a "Temporary Directional Sign" one must determine whether the sign "conveys the message of directing the public" to an event. It does not matter, Thomas writes for the Court, that the content may seem neutral:
A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech. *** In other words, an innocuous justification cannot transform a facially content- based law into one that is content neutral.
Once the Court decided there the regulation was subject to strict scrutiny, there was little doubt that the town would not be able to satisfy the standard. Thomas assumed that the proffered governments interests of aesthetics and traffic safety were compelling, but quickly determined that that the manner in which they were being served was far from narrowly tailored. Instead, the regulations were "hopelessly underinclusive."
The concurring opinions take on the issue raised in oral argument about the constitutionality of any town's attempt to regulate signage. Justice Kagan's concurring opinion, joined by Justice Ginsburg and by Breyer (who also has a separate concurring opinion) - - - but not by Justice Alito, who has his own brief concurrence, joined by Kennedy and Sotomayor (who also join the Thomas's opinion for the Court)- - - argues that strict scrutiny is not appropriate for all sign ordinances. Kagan states:
Although the majority insists that applying strict scrutiny to all such ordinances is “essential” to protecting First Amendment freedoms, I find it challenging to understand why that is so. This Court’s decisions articulate two important and related reasons for subjecting content-based speech regulations to the most exacting standard of review. The first is “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” McCullen v. Coakley. The second is to ensure that the government has not regulated speech “based on hostility—or favoritism— towards the underlying message expressed.” R. A. V. v. St. Paul (1992). Yet the subject-matter exemptions included in many sign ordinances do not implicate those concerns. Allowing residents, say, to install a light bulb over “name and address” signs but no others does not distort the marketplace of ideas. Nor does that different treatment give rise to an inference of impermissible government motive.
She instead argues that the "we may do well to relax our guard so that 'entirely reasonable' laws imperiled by strict scrutiny can survive." But it was evident that even the concurring Justices did not view the Town of Gilbert's signage regulations as entirely reasonable.
Court Decides Specialty License Plate is Government Speech in Sons of Confederate Veterans License Plate
In a closely - - - and interestingly - - - divided opinion today in Walker v. Texas Sons of Confederate Veterans, the Court's majority decided that Texas's specialty license plate program is government speech and therefore rejected the First Amendment challenge to the denial of a specialty license plate requested by the Texas Sons of Confederate Veterans.
Justice Breyer delivered the Court's opinion, joined by four Justices, Ginsburg, Sotomayor, Kagan, and - - - Thomas. The dissenting opinion by Justice Alito was joined by Chief Justice Roberts, Scalia, and Kennedy. And while Justice Breyer has become known for his appendices, this opinion has a simple one: the image of the rejected Sons of Confederate Veterans plate. Meanwhile, Alito's dissenting opinion has a more extensive appendix; it includes the images of 58 specialty plates that Texas has approved.
As was evident in the oral arguments, and is frequently the case in First Amendment speech controversies, there was a definite choice of doctrine at stake. Recall that the Fifth Circuit's divided opinion, reversing the district judge, found that the denial violated the First Amendment as impermissible viewpoint and content discrimination. The Court today not only rejected that view, but it rejected the applicability of any forum analysis. Instead, the Court applied the doctrine of government speech articulated in the Court's unanimous Pleasant Grove City v. Summum (2009) finding that there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas. This was raised at numerous points in the oral arguments and echoes the opinion of Judge Jerry Smith who had dissented in the Fifth Circuit's divided opinion. Breyer did note that there were some aspects of Summum that were not exactly parallel, such as the permanence of the monuments in Summun, the opinion states that this was important because the public parks in Summun are traditional public forums, which is not the case for license plates.
And as for that other and most famous license plate case, Wooley v. Maynard (1977), the Court's majority opinion distinguished Walker because "compelled private speech is not at issue." And indeed, if there is any compulsion of conveying ideological messages to be protected against here, it is that of the state being compelled to "include a Confederate battle flag on its specialty license plates."
Justice Alito's dissenting opinion has at its base a common-sense disagreement. Noting the proliferation of specialty plates, supported by his Appendix, he asks:
As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” If you did your viewing at the start of the college football season and you saw Texas plates with the names of the University of Texas’s out-of-state competitors in upcoming games— Notre Dame, Oklahoma State, the University of Oklahoma, Kansas State, Iowa State—would you assume that the State of Texas was officially (and perhaps treasonously) rooting for the Longhorns’ opponents? And when a car zipped by with a plate that reads “NASCAR – 24 Jeff Gordon,” would you think that Gordon (born in California, raised in Indiana, resides in North Carolina) is the official favorite of the State government?
Thus, he argues that what Texas has done by selling space on its license plates is to create a "limited public forum."
Walker v. Sons of Confederate Veterans could have wide-ranging effect. Does it give unfettered discretion to governments to decide license plate matters given that it is now government speech? Consider that the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; that the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; and that a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.
Monday, June 15, 2015
In United States Supreme Court's fragmented and closely divided decision in Kerry v. Din, the majority rejected the procedural due process argument of a naturalized American citizen to an explanation of the reasons supporting a denial of a visa to her noncitizen husband. Justice Scalia, writing for the plurality and joined by Thomas and Chief Justice Roberts, concluded that she had no cognizable liberty interest attributable to her marriage. Justice Kennedy, joined by Alito, would not reach the liberty interest issue because the process here was all that was due. Justice Breyer, dissenting, and joined by Ginsburg, Sotomayor, and Kagan, would affirm the Ninth Circuit and find that she had a cognizable liberty interest and that more process was due in the form of a more precise and factual explanation.
So what might this mean for Obergefell? Most obviously, the dissenting opinion by Breyer, and joined by Ginsburg, Sotomayor, and Kagan, articulates an expansive liberty interest in marriage under the Due Process Clause that could be easily imported into Obergefell. On Justice Kennedy's concurrence, joined by Alito, the clear signal is that Justice Scalia's refusal to recognize a liberty interest in marriage is not one to which they are subscribing - - - in this case. Given that Justice Kennedy, as author of the Court's opinions Windsor, Lawrence, and Romer v. Evans, is being closely watched as potential author of an opinion in favor of Obergefell, there is nothing in Din that would mitigate that judgment. As for the plurality, Justice Scalia's derogation of substantive due process has a familiar ring that might be echoed in his opinion in Obergefell, with an emphasis on history. While Justice Thomas is widely expected to agree with Scalia's position, does the Chief Justice's joining of Scalia's opinion in Kerry v. Din signal a disapproval of recognizing any liberty interest in marriage? Perhaps. But perhaps not. Consider this:
Unlike the States in Loving v. Virginia, 388 U. S. 1 (1967), Zablocki v. Redhail, 434 U. S. 374 (1978), and Turner v. Safley, 482 U. S. 78 (1987), the Federal Government here has not attempted to forbid a marriage. Although Din and the dissent borrow language from those cases invoking a fundamental right to marriage, they both implicitly concede that no such right has been infringed in this case. Din relies on the “associational interests in marriage that necessarily are protected by the right to marry,” and that are “presuppose[d]” by later cases establishing a right to marital privacy.
Indeed, under this view, as the Court made clear in Zablocki, there must be a "direct and substantial" interference with marriage in order for there to be a liberty interest. The Court in Zablocki distinguished Califano v. Jobst, 434 U.S. 47 (1977) - - - which the Court in Din does not cite - - - which found no constitutional infirmity with altering social security benefits upon marriage. In short, the marriage was not "forbidden," it was simply subject to certain regulations in another the complex social security scheme, not unlike the complex immigration scheme.
So for those who might attempt to predict the various positions of the Justices in Obergefell based on Kerry v. Din, there is certainly much "play."
The Court today issued its closely divided opinion in Kerry v. Din. On this 800th anniversary of Magna Carta, both the plurality opinion by Justice Scalia and the dissenting opinion by Justice Breyer referenced the great charter's protection of what the Constitution's Fifth Amendment termed "due process of law." In Din, the due process rights of a citizen who obtained preferred immigration status for her spouse are at stake. Certainly the case is important in the immigration context, but how important might it be as a harbinger of the Court's impending decision in the consolidated same-sex marriage cases, Obergefell v. Hodges, argued in late April? What Kerry v. Din might say about Obergefell is discussed here.
In Kerry v. Din, a naturalized citizen, petitioned to have her husband, Berashk, classified as an “immediate relative” entitled to priority immigration status, and although this was approved, Berashk’s visa application was denied under §1182(a)(3)(B), which excludes aliens who have engaged in “[t]errorist activities,” but the consular officer provided no further information. Unable to obtain a more detailed explanation for Berashk’s visa denial, Din filed a complaint in federal court which was dismissed. The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa. It further held that the Government deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation of its reasons.
In the plurality opinion joined by Chief Justice Roberts and Justice Thomas, Justice Scalia has harsh words for Din's claim of any right of "life, liberty, or property" to which due process would attach. It is "absurd" and nothing in the caselaw "establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection." He characterizes her right as one to live in the United States with one's spouse, and concludes that such a right fails the Washington v. Glucksberg test requiring that any implicit right be "deeply rooted in this Nation's history and tradition." Indeed, he argues that the history is exactly the opposite and discusses laws that mandated women "take the nationality of her husband on marriage." While noting that modern " equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order," nevertheless, he concludes that "this all-too-recent practice repudiates any contention that Din’s asserted liberty interest is 'deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.'"
Justice Kennedy, joined by Justice Alito, firmly rejects Justice Scalia's conclusion: "Today’s disposition should not be interpreted as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse." Instead, Kennedy concludes that the "Court need not decide that issue," for "even assuming she has such an interest, the Government satisfied due process when it notified Din’s husband that his visa was denied under the immigration statute's terrorism bar." For Kennedy and Alito, the citation of the statute seemingly satisfies all the process that is due.
Dissenting, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, argues that there is a liberty interest flowing from the Due Process Clause itself and from the statutory scheme establishing immigration preferences. In his critique of the plurality opinion, Breyer reminds readers that it "is not controlling." He discusses a number of cases in which the Court has recognized liberty interests, perhaps most compellingly Goss v. Lopez (1975), involving students' interest in attending school and not being suspended, and which the plurality opinion seeks to distinguish. Regarding the "process due," Breyer notes that a statement of the reasons for a government action is an essential part of due process and one that a recitation of the statute in this case cannot satisfy given that it contains "dozens" of reasons. Moreover, the government offered no factual basis. He argues:
Thus, the dissenters would recognize both the liberty interest of a spouse in her partner's visa denial and that procedural due process requires something more than the recital of a statute; Kennedy and Alito find that the statutory referral is sufficient process; and the plurality finds that there is no liberty interest of a spouse in her partner's visa denial. It's a fragmented set of conclusions and its predictive value for the same-sex marriage cases raises some interesting possibilities.
The generality of the statutory provision cited and the lack of factual support mean that here, the reason given is analogous to telling a criminal defendant only that he is accused of “breaking the law”; telling a property owner only that he cannot build because environmental rules forbid it; or telling a driver only that police pulled him over because he violated traffic laws. As such, the reason given cannot serve its procedural purpose. It does not permit Ms. Din to assess the correctness of the State Department’s conclusion; it does not permit her to determine what kinds of facts she might provide in response; and it does not permit her to learn whether, or what kind of, defenses might be available. In short, any “reason” that Ms. Din received is not constitutionally adequate.
Sunday, June 14, 2015
Reversing the district judge, a panel opinion of the Sixth Circuit in Smith v. Jefferson County Board of School Commissioners found that there was no Establishment Clause violation when a Tennessee public school board contracted with a "religious institution," Kingswood Schools, Inc., to provide "alternative-school" services for students suspended or expelled from their "ordinary schools." The county school board entered into the contract because of a funding shortfall and over seven years paid Kingswood, 1.7 million dollars; the arrangement ended when the county resumed providing alternative-school services.
The majority's opinion by Judge Julia Smith Gibbons, coupled with a separate concurring opinion by Judge Alice Batchelder, illustrates the disarray of Establishment Clause doctrine. Yet both the majority and concurring opinion settle on the "endorsement test" and find it is not satisfied. Specifically, the majority considered the "voluntary assemblies" as well as whether the "Biblical quotes on the report cards, family-feedback forms and—for those who sought them out—the annual report and school- improvement plan" constituted endorsement. As the majority described:
Students were required to submit a weekly family-feedback form—signed by their parents—in order to advance within the day program. That form contained the following quote from the Gospel of Luke: “Jesus . . . said, Suffer little children to come unto me, and forbid them not: for of such is the kingdom of God.” Parents were also required to sign report cards, which contained the same Biblical text. Kingswood’s director testified that the scripture—from the Gospel of Luke—could be interpreted as an invitation into the kingdom of God. The same passage appeared, accompanied by crosses, on the school’s Easter 2006 letter. The letter claimed: “Kingswood School is unique because we offer children a Christian environment of love and encouragement. . . . Kingswood remains one of the few places where children in need can get help in a Christian environment. We are a non-profit faith based ministry . . . .”
Those who sought out the 2005 Annual Report saw that it contains a picture of the chapel and says that each child will receive Christian religious training, and that emphasis is placed upon “instilling in each child a personal faith in God, and the assurance of the saving grace of Jesus Christ.” The “school improvement plan,” completed before the Jefferson County contract and still in effect afterward, stated the belief that schools must provide for “spiritual growth” in order to serve the “‘whole’ student.”
The Kingswood website also contained some religious references. It claimed, for example, that “Kingswood has survived independently by remaining true in faith to the principles of a Christian education without being bound to the doctrine of a particular denomination or sect’s control.” It states that the school will take care of a child’s “spiritual and religious life,” although it will not compel a student to adopt any particular religious doctrine. The website refers to Kingswood as a “Christian charity,” and explains its “Methodist-rooted beginnings.” It says that the school “has observed a Christian approach that has remained inter- faithed and unaffiliated with a particular Christian denomination.”
In its analysis, the court characterizes the Christian language as "de minimus" and concludes that a "reasonable observer would view all of these in the specific context of the arrangement that Kingswood had with Jefferson County." The arrangement saved taxpayer money and the court found it noteworthy that no parents or students complained. Instead, it reiterates that the complaint was by teachers of the public school who were terminated. The complaint was originally dismissed for lack of standing; the Sixth Circuit reversed en banc in 2011. The concurring opinion goes further and calls the case an "employment-contract dispute masquerading as an Establishment Clause case."
Yet the Establishment Clause disarray is not attributable to the procedural posture or the application of the so-called "endorsement test," but to questions about the test to be applied. According to the majority, there are "three main jurisprudential threads": the Lemon test; the endorsement test as a refinement of Lemon; and the "historical practice" test as articulated in Town of Greece v. Galloway, the closely-divided 2014 decision by the United States Supreme Court upholding a town council's prayer. The majority finds the historical practice test inapposite, but the concurrence argues for its application.
Interestingly, the court majority distinguishes Doe v. Elmbrook School District, in which the Seventh Circuit en banc found that an Establishment Clause violation existed when the school held graduation ceremonies in a church. The United States Supreme Court denied certiorari in Elmbrook, over a dissent by Justice Scalia (joined by Justice Thomas), arguing that the lower court's opinion is "fundamentally inconsistent" with a "number of points" "made clear" by Town of Greece v. Galloway. In her concurrence, Judge Batchelder essentially agrees with Justice Scalia. Judge Batchelder asks whether the school board's "contract would be historically acceptable to the Framers," seemingly assumes that it would be, and then would engage in a "fact-sensitive" inquiry regarding coercion. Judge Batchelder characterizes the biblical references as "innocuous," so presumably she would not find them coercive.
Yet bible verses on mandatory student correspondence that must be signed by parents on a weekly basis does seem to raise the specter of coercion - - - even if no parents or students of the "alternative-school" complained.
Monday, June 1, 2015
Dissenting in a denial of certiorari today in County of Maricopa, Arizona v. Lopez-Valenzuela, Justice Thomas, joined by Justice Scalia, argued that the Supreme Court should review decisions by lower federal courts invalidating state "constitutional provisions." At issue in Lopez-Valenzuela is Arizona's "Proposition 100" a ballot measure passed by Arizona voters that amended the state constitution to preclude bail for certain serious felony offenses if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the charge.
The Ninth Circuit en banc held the measure unconstitutional as violative of due process, over dissents by Judges Tallman and O'Scannlain.
Justice Thomas notes that
Congress historically required this Court to review any decision of a federal court of appeals holding that a state statute violated the Federal Constitution. 28 U. S. C. §1254(2) (1982 ed.). It was not until 1988 that Congress eliminated that mandatory jurisdiction and gave this Court discretion to review such cases by writ of certiorari. See Pub. Law 100-352, §2, 102 Stat. 662.
More provocatively, Justice Thomas implicitly evokes the "Ghost of Lochner" by pointing out that the Ninth Circuit's decision rested on substantive due process grounds and quoting from West Coast Hotel Co. v. Parrish, 300 U. S. 379, 391 (1937) and Nebbia v. New York, 291 U. S. 502, 537–538 (1934), which specifically disapproved Lochner v. New York (1905).
For Justice Thomas, the Court's refusal to grant certiorari is "disheartening," : "there are not four Members of this Court who would even review the decision below." (Note that Justice Alito also dissented, although he did not join Justice Thomas's opinion, for a total of three Justices who would have granted certiorari).
For Justice Thomas, the Court's "indifference to cases such as this one will only embolden the lower courts to reject state laws on questionable constitutional grounds."
In its highly-anticipated opinion in Elonis v. United States seemingly involving the First Amendment protections for threatening language posted on Facebook, the Court deflected the constitutional issue in favor of statutory interpretation.
Recall that while the question presented in the certiorari petition focused on the First Amendment and pointed to a split in the circuits regarding an application of Virginia v. Black, 538 U.S. 343 (2003) to a conviction of threatening another person: did it require proof of the defendant’s subjective intent to threaten or whether it is enough to show that a “reasonable person” would regard the statement as threatening. However, the Court's Order granting certiorari instructed:
In addition to the question presented by the petition, the parties are directed to brief and argue the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."
And at oral argument, much of the discussion delved into common law and Model Penal Code doctrine, even as these were intertwined with First Amendment considerations.
Today's opinion, authored by Chief Justice Roberts, disentangles the First Amendment from the analysis. It concludes that as a matter of statutory interpretation, the instructions to the jury that guilt could be predicated on a "reasonable person" standard merited reversal.
Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under Section 875(c), “wrongdoing must be conscious to be criminal.”
However, whether or not that mental state could include "recklessness" was not decided by the Court. Chief Justice Roberts's opinion for the seven Justice majority, specifically disagreed with Justices Alito and Thomas, who each wrote separately, regarding the suitability of reaching the "recklessness" issue. Roberts wrote:
In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient. Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it.
Moreover, although the Court may be “capable of deciding the recklessness issue,” (quoting the opinion of ALITO, J.), Roberts wrote that "following our usual practice of awaiting a decision below and hearing from the parties would help ensure that we decide it correctly."
Here is the Court's First Amendment "discussion":
Given our disposition, it is not necessary to consider any First Amendment issues.
Justice Alito would reach the First Amendment issue and hold that a recklessness standard would comport with the First Amendment. Justice Thomas, dissenting, would affirm the Third Circuit's "general intent" standard and hold that Elonis' statements were "true threats" unprotected by the First Amendment.
Interestingly, Chief Justice Roberts's opinion does include extensive quotes from the postings, including Mr. Elonis's reference to "true threat jurisprudence." It does not, however, include some of the more problematical sexual language.
Wednesday, May 27, 2015
In its divided opinion in Children First Foundation v. Fiala, the Second Circuit held that the Commissioner of Motor Vehicle's rejection of "Choose Life" license plates for the state's specialty plate program is constitutional. Judge Pooler, joined by Judge Hall, reversed the district judge's conclusion that the rejection violated the First Amendment.
The Second Circuit's divided opinion enters the fray of what might be called the developing doctrine of license plates, be they state-mandated, vanity, or as here, "specialty" plates issued by the state as a means of raising revenue. As we've discussed, the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.
The progenitor of this doctrine is the classic First Amendment case of Wooley v. Maynard (1977) involving compelled speech. This Term the Court heard oral arguments in Walker v. Texas Sons of Confederate Veterans; a divided Fifth Circuit had held that the rejection of the Sons of Confederate Veterans plate (featuring the Confederate flag) was a violation of the First Amendment as impermissible content and viewpoint discrimination. The Second Circuit stayed the mandate of its decision pending the outcome of Walker.
The specialty license plate litigation involves the intersection of a number of First Amendment doctrines. As Judge Pooler's opinion in Children First Foundation expressed its holding:
We conclude that the content of New York’s custom license plates constitutes private speech [rather than government speech] and that the plates themselves are a nonpublic forum. CFF’s facial challenge fails because New York’s custom plate program did not impermissibly vest the DMV Commissioner with unbridled discretion in approving custom plate designs. Furthermore, that program, as applied in this case, was reasonable and viewpoint neutral, which is all that the First Amendment requires of restrictions on expression in a nonpublic forum.
Judge Pooler's well-structured opinion supports this conclusion. First, the court considers whether the license plate is government speech or private speech. If the speech is government speech, then the First Amendment has little application. (Recall that this was the position of the dissenting judge in the Fifth Circuit's decision in Sons of Confederate Veterans). Agreeing with other circuits, the court reasons that an application of Pleasant Grove City, Utah v. Summum (2009) and Johanns v. Livestock Marketing Ass’n (2005) leads to " little difficulty concluding that such an observer would know that motorists affirmatively request specialty plates and choose to display those plates on their vehicles, which constitute private property."
bringing to justice individuals who have attacked police officers cannot reasonably compare—either by its very nature or by the level of contentiousness that surrounds it—to the issue of abortion. With respect to the decision to issue a “Union Yes” plate, while the myriad issues pertaining to organized labor in the United States are social and political in nature, there is no basis to conclude that the Department failed to apply the policy against creating plates that touch upon contentious political issues as opposed to having applied the policy and merely reaching a different result than it did with the “Choose Life” plate.
May 27, 2015 in Abortion, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, First Amendment, Opinion Analysis, Reproductive Rights, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 26, 2015
The United States Supreme Court granted certiorari today in Foster v. Humphrey to the Georgia Supreme Court denying post-conviction relief.
According to the petition, in 1987, an all-white jury convicted Timothy Tyrone Foster, a "poor, black, intellectually compromised eighteen year old" of the murder of an elderly white woman. At trial, one black potential juror was removed for cause, and the prosecutors removed all four of the remaining black prospective jurors by peremptory strike, and proffered race-neutral reasons when defense counsel raised a challenge under the then-recent case of Batson v. Kentucky (1986). The judge rejected defense counsel's argument that the race-neutral reasons were pretexual and denied the Batson challenge. The Georgia courts affirmed.
Almost twenty years later, pursuant to a request under the state open records act, Foster gained access to the prosecution team's jury selection notes, which included highlighting the black potential jurors (image at right), circling the word "black" as an answer to the race question on the juror questionnaire, identifying the black potential jurors as B#1, B#2, and B#3 in the notes, and a draft affidavit by the prosecution investigator stating "“if we had to pick a black juror then I recommend that [Marilyn] Garrett be one of the jurors; with a big doubt still remaining.” (The affidavit was originally submitted to the court with all mentions of race excised).
In the post-conviction proceeding, the court held that "[t]he notes and records submitted by Petitioner fail to demonstrate purposeful discrimination on the basis that the race of prospective jurors was either circled, highlighted or otherwise noted on various lists." The Georgia Supreme Court declined review.
In granting certiorari, the United States Supreme Court could certainly agree with the Georgia courts and simply affirm. Assuming the Court granted certiorari because of some disagreement with the conclusions, the Court might take a broader approach. According to the petition in Foster, the prosecution "proffered a combined forty reasons for striking" the four black potential jurors. Because there are almost always "neutral" reasons for exercising a peremptory challenge - - - given that it can be based on essentially a "hunch" - - - proving racial motivation and discrimination can be difficult. The Court has the opportunity to revisit Batson and the problem of distinguishing between race-neutral and pretextual reasons, perhaps providing a more workable and fair rule.
May 26, 2015 in Courts and Judging, Criminal Procedure, Equal Protection, Federalism, First Amendment, Fundamental Rights, Habeas Corpus, Race, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, May 18, 2015
The United States Supreme Court's opinion in City and County of San Francisco v. Sheehan arises from an incident in which two police officers shot Teresa Sheehan, a woman suffering from a schizoaffective disorder who was living in a group home for those with mental illness.
The seemingly primary issue upon which certiorari was granted was whether the Americans with Disabilities Act, ADA, 42 U. S. C. §12132, required law enforcement officers to "provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.” The Court, in an opinion by Justice Alito, found fault with the attorneys litigating on behalf of San Francisco and dismissed this first question presented as improvidently granted. In a concurring and dissenting opinion, Justice Scalia, joined by Justice Kagan, also faulted the attorneys for San Francisco, noting that the Petition for Certiorari
assured us (quite accurately), and devoted a section of its argument to the point, that "The Circuits Are In Conflict On This Question.”
But, Justice Scalia continued,
Imagine our surprise, then, when the petitioners’ principal brief, reply brief, and oral argument had nary a word to say about that subject.
Instead, the petitioners argued that "the issue is not (as the petition had asserted) whether Title II applies to arrests of violent, mentally ill individuals, but rather how it applies under the circumstances of this case, where the plaintiff threatened officers with a weapon."
We were thus deprived of the opportunity to consider, and settle, a controverted question of law that has divided the Circuits, and were invited instead to decide an ADA question that has relevance only if we assume the Ninth Circuit correctly resolved the antecedent, unargued question on which we granted certiorari.
Scalia had especially harsh words for the attorneys for San Francisco, casting aspersion on their integrity:
Why, one might ask, would a petitioner take a position on a Circuit split that it had no intention of arguing, or at least was so little keen to argue that it cast the argument aside uninvited? The answer is simple. Petitioners included that issue to induce us to grant certiorari.
Scalia states that the Court would never have granted certiorari on the first question as it was argued in the briefs and would certainly have never granted certiorari on the"fact-bound" qualified immunity issue. Scalia, with Kagan, dissented from the Court's holding on the qualified immunity issue:
I would not reward such bait-and-switch tactics by proceeding to decide the independently “uncertworthy” second question. And make no mistake about it: Today’s judgment is a reward. It gives the individual petitioners all that they seek, and spares San Francisco the significant expense of defending the suit, and satisfying any judgment, against the individual petitioners. I would not encourage future litigants to seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court’s docket, we will consider whatever workaday arguments they choose to present in their merits briefs.
The Court, absent Justice Breyer who did not participate in the case, did "reward" San Francisco by finding that the police officers were protected by qualified immunity: "no precedent clearly established that there was not 'an objective need for immediate entry' here." The somewhat particular facts - - - the situation involved an entry and then a re-entry of Sheehan's room - - - nevertheless involved a "straightforward" and exceedingly brief qualified immunity analysis.
And a reversal of the Ninth Circuit.
While the attorneys for the City and County of San Francisco may have endured a scolding, Scalia is correct that the Court's decision is ultimately a reward.
Thursday, May 7, 2015
District Judge Rejects Challenges to Requirement that Government Contractors Post Employee Rights Notice
In an opinion today in National Association of Manufacturers (NAM) v. Perez, Judge Amit Mehta of the District of Columbia District Court rejected various challenges to the Department of Labor's so-called "Posting Rule," a regulation requiring, as a condition of nearly all federal contracts, that contractors post workplace notices informing their employees of their rights under the National Labor Relations Act. The "Posting Rule" is derived from President Obama's Executive Order 13496, promulgated in January 2009 pursuant to the Procurement Act.
The central constitutional challenge is that the "Posting Rule" is compelled speech and violates the First Amendment as an unconstitutional condition. The court's first task was to determine the relevance of a NAM v. NLRB, 717 F.3d 947 (D.C. Cir. 2013), overruled in part by Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014). The judge concluded that while the posting at issue in NAM was "nearly identical," that case was not a First Amendment one - - - although it drew on some First Amendment principles - - - but an interpretation of §8(c) of the NLRA which prohibits the expression of views, argument, or opinions as constituting an unfair labor practice.
Instead, the challenge here was analogous to the Supreme Court's decision in Rumsfeld v. FAIR involving the Solomon Amendment directed at law schools.
There is little material distinction between FAIR and this case. The facts differ, but the First Amendment analysis and outcome are the same. Like the Solomon Amendment, the Posting Rule is a “far cry” from the government-mandated speech deemed unconstitutional in Barnette and Wooley. Requiring an employer to post government speech about labor rights is “simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto ‘Live Free or Die,’ and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.”
Moreover, the Posting Rule does not require a contractor to speak at all. Rather, the contractor is required to host government speech as a condition of receipt of a federal contract. That, of course, presents a contractor with a choice—agree to post the Notice or forgo federal contracting. But that choice is no different than the one presented by the Solomon Amendment— either accommodate a military recruiter or forgo federal funds.
Additionally, the Posting Rule does not interfere with the contractor’s ability to convey a different message. A contractor can still express its own views or engage in lawful activities to discourage unionization. Indeed, nothing in the rule prevents a contractor from creating its own posting and placing it next to the Department of Labor-drafted Notice, so as to make clear that the Notice does not reflect the contractor’s own views and its display is government mandated. *** A contractor’s speech is thus not “affected by the speech it [is] forced to accommodate.”
Nor are employees likely to believe that the Notice is their employer’s speech.
[citations omitted]. The court rejected NAM's attempt to distinguish FAIR because the speech here is a “slanted list of rights that unfairly promotes unionization while pointedly omitting a host of other critical employee rights,” noting even if the court could determine the meaning of "slanted," it is well settled that the government may make content-based choices about its own speech.
The court rejected NAM's arguments regarding preemption, as well as its statutory and administrative law arguments. It therefore entered summary judgment in favor of the government.Given the vigor with which NAM has litigated similar issues, it will most likely appeal. However, recently appointed Judge Mehta has authored a closely reasoned opinion that should withstand review.
Wednesday, April 29, 2015
In its 5-4 opinion in Williams-Yulee v. The Florida Bar, the Court concluded that Florida's Code of Judicial Conduct 7C(1) prohibiting the personal solicitation of campaign funds by judicial candidates does not violate the First Amendment.
From the oral arguments, it did seem as if the opinion would be closely divided, but it was less predictable that Chief Justice Roberts would be writing for the majority upholding Florida's Canon7C(1). In the majority opinion, joined by Justices Breyer, Sotomayor, and Kagan in full, and by Ginsburg except as to part II, Roberts began:
Our Founders vested authority to appoint federal judges in the President, with the advice and consent of the Sen- ate, and entrusted those judges to hold their offices during good behavior. The Constitution permits States to make a different choice, and most of them have done so. In 39 States, voters elect trial or appellate judges at the polls. In an effort to preserve public confidence in the integrity of their judiciaries, many of those States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech.
We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court.
However, writing only for a plurality, Chief Justice Roberts, relying on Republican Party of Minnesota v. White (2002), held that a "State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest." The plurality rejected the Florida Bar's argument, supported by several amici, that the Canon should be subject to the more permissive standard of Buckley v. Valeo (1976) requiring that the law be “closely drawn” to match a “sufficiently important interest.” It concluded that the “closely drawn” standard is a "poor fit" for this case which is a claimed violation of a right to free speech rather than a claimed violation of “freedom of political association.”
Justice Ginsburg, concurring, reiterated her dissent in Republican Party of Minnesota v. White regarding the standard of review, and emphasized that the Court's "recent campaign-finance decisions, trained on political actors, should not hold sway for judicial elections," specifically discussing Citizens United (2010) and McCutcheon (2014). Justice Breyer, who joined the Chief Justice's opinion in full, nevertheless wrote briefly regarding the standard of review, reiterating his previous statements that he views "this Court’s doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied."
Despite the highest scrutiny, however, Chief Justice Roberts's opinion for the Court declared that
Canon 7C(1) advances the State’s compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech. This is therefore one of the rare cases in which a speech restriction withstands strict scrutiny.
The Court found that “protecting the integrity of the judiciary” and “maintaining the public’s confidence in an impartial judiciary” were both compelling governmental interests. (The Court did not discuss a specific interest of lawyers or their clients in judicial integrity). As to the narrow tailoring, the Court rejected the "underinclusive" argument - - - essentially that judicial candidates could indirectly solicit campaign funds - - - by noting that while underinclusivity may raise a "red flag," there is no "freestanding 'underinclusiveness limitation.'” Here, the Court concluded that
personal solicitation by judicial candidates implicates a different problem than solicitation by campaign committees. However similar the two solicitations may be in substance, a State may conclude that they present markedly different appearances to the public. Florida’s choice to allow solicitation by campaign committees does not undermine its decision to ban solicitation by judges.
There are three dissenting opinions by the Justices: Scalia, joined by Thomas; Kennedy, and Alito. As the author of Caperton v. Massey, on which the Court partially relies for its compelling governmental interest in judicial integrity, Kennedy's opinion is perhaps most noteworthy. (And recall that Chief Justice Roberts dissented in Caperton). Caperton, based in due process rather than free speech, is uncited in Kennedy's concurring opinion, which focuses on the First Amendment:
This separate dissent is written to underscore the irony in the Court’s having concluded that the very First Amendment protections judges must enforce should be lessened when a judicial candidate’s own speech is at issue. It is written to underscore, too, the irony in the Court’s having weakened the rigors of the First Amendment in a case concerning elections, a paradigmatic forum for speech and a process intended to protect freedom in so many other manifestations.
At the crux of Kennedy's dissent, as the other dissents, is the similarity of judicial elections to political elections. The distinction - - - or lack thereof - - - between judicial and other elections is the linchpin on which the differing views of the case pivot. Chief Justice Roberts ends the Court's opinion with an originalist reflection on that distinction:
The desirability of judicial elections is a question that has sparked disagreement for more than 200 years. Hamilton believed that appointing judges to positions with life tenure constituted “the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.” The Federalist No. 78, at 465. Jefferson thought that making judges “dependent on none but themselves” ran counter to the principle of “a government founded on the public will.” 12 The Works of Thomas Jefferson 5 (P. Ford ed. 1905). The federal courts reflect the view of Hamilton; most States have sided with Jefferson. Both methods have given our Nation jurists of wisdom and rectitude who have devoted themselves to maintaining “the public’s respect . . . and a reserve of public goodwill, without becoming subservient to public opinion.” Rehnquist, Judicial Independence, 38 U. Rich. L. Rev. 579, 596 (2004).
It is not our place to resolve this enduring debate. Our limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity.
Wednesday, April 22, 2015
The issue of a federal regulatory scheme of raisins returned to the United States Supreme Court for another round of oral arguments today in Horne v. Department of Agriculture.
Recall that in a brief opinion in June 2013, the Court reversed the Ninth Circuit and held that the Hornes did state a claim for regulatory taking. The claim arises from a regulatory program under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq., that mandates that a certain percentage of a raisins be put in "reserve" each year. By resisting the program, the Hornes have become "outlaws" or heroes of sorts.
While the Hornes continue to argue that the program constitutes a taking, in today's oral argument Michael McConnell representing the Hornes pressed the issue of the taking as a per se one rather than a regulatory one because the Department of Agriculture takes possession and title of the raisins.
The Deputy Solicitor General, Edwin Kneedler, rejected the Chief Justice's humorous suggestion that government would "come up with the truck and you get the shovels and you take their raisins, probably in the dark of night," by insisting that under the Order, the producer submits the raisins to the handler who divides them into two categories. The reserve raisins are separated for later sale, the proceeds of which are pooled and distributed back to the producers. However, Kneedler did admit that one can assume that the government committee takes title in order to sell the raisins.
There were also questions of even if there was a taking whether any "just compensation" was due. In other words, what if the government taking resulted in no loss - - - or even a benefit - - - to the Hornes?
But the Justices seemed bothered by the program, with Justice Scalia expressing this discomfort most blatantly: "Central planning was thought to work very well in 1937, and Russia tried it for a long time." Perhaps the program - - - and the 8 or 10 or maybe more programs that are similar - - - is simply a relic of another time.
However, as Justice Kagan made clear, whether the program was sensible or ridiculous was not for the Court to decide and, she implied, irrelevant to the taking analysis.
Thursday, April 16, 2015
The United States Supreme Court is set to hear oral arguments on April 28 in the same-sex marriage cases, now styled as Obergefell v. Hodges, a consolidated appeal from the Sixth Circuit’s decision in DeBoer v. Snyder, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee that had held the same-sex marriage bans unconstitutional, and creating a circuit split.
Recall that the Court certified two questions:
1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The case has attracted what seems to be a record number of amicus briefs. As we discussed last year, previous top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92. [Note that the "Obamacare" Affordable Care Act cases including 2012's consolidated cases of NFIB v. Sebelius attracted 136 amicus briefs.]
The count for Obergefell v. Hodges stands at 139. 147 [updated: 17 April 2015] 149 [updated] LINKS TO ALL THE BRIEFS ARE AVAILABLE ON THE ABA WEBSITE HERE.
76 77 amicus briefs support the Petitioners, who contend that same-sex marriage bans are unconstitutional.
58 66 67 amicus briefs support the Respondents, who contend that same-sex marriage bans are constitutional.
05 amicus briefs support neither party (but as described below, generally support Respondents).
According to the Rules of the Supreme Court of the United States, Rule 37, an amicus curiae brief’s purpose is to bring to the attention of the Court “relevant matter not already brought to its attention by the parties.” While such a brief “may be of considerable help to the Court,” an “amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”
An impressive number of the Amicus Briefs are authored or signed by law professors. Other Amici include academics in other fields, academic institutions or programs, governmental entities or persons, organizations, and individuals, often in combination. Some of these have been previously involved in same-sex marriage or sexuality issues and others less obviously so, with a number being religious organizations. Several of these briefs have been profiled in the press; all are linked on the Supreme Court’s website and on SCOTUSBlog.
Here is a quick - - - if lengthy - - - summary of the Amici and their arguments, organized by party being supported and within that, by identity of Amici, beginning with briefs having substantial law professor involvement, then government parties or persons, then non-legal academics, followed by organizations including religious groups, and finally by those offering individual perspectives. [Late additions appear below]Special thanks to City University of New York (CUNY) School of Law Class of 2016 students, Aliya Shain & AnnaJames Wipfler, for excellent research.
April 16, 2015 in Courts and Judging, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Foreign Affairs, Fourteenth Amendment, Free Exercise Clause, Full Faith and Credit Clause, Fundamental Rights, Gender, History, Interpretation, Privacy, Profiles in Con Law Teaching, Race, Recent Cases, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US), Theory | Permalink | Comments (3)
Wednesday, April 15, 2015
In a case with similarities to Town of Greece, NY v. Galloway decided by the United States Supreme Court last year, the Supreme Court of Canada today rendered its judgment in Mouvement laïque québécois v. Saguenay (City) finding that a prayer at a municipal council meeting violated the constitution.
S regularly attended the public meetings of the municipal council of the City of Saguenay [Quebec]. At the start of each meeting, the mayor would recite a prayer after making the sign of the cross while saying [translation] “in the name of the Father, the Son and the Holy Spirit”. The prayer also ended with the sign of the cross and the same words. Other councillors and City officials would cross themselves at the beginning and end of the prayer as well. In one of the council chambers, there was a Sacred Heart statue fitted with a red electric votive light. In another, there was a crucifix hanging on the wall. S, who considers himself an atheist, felt uncomfortable with this display, which he considered religious, and asked the mayor to stop the practice. When the mayor refused, S complained to the Commission des droits de la personne et des droits de la jeunesse. He argued that his freedom of conscience and religion was being infringed, contrary to ss. 3 and 10 of the Quebec Charter, and asked that the recitation of the prayer cease and that all religious symbols be removed from council chambers.
The original Tribunal found the practice unconstitutional, but the Court of Appeal held that the prayer "expressed universal values" and "could not be identified with any particular religion." It also reasoned that the "religious symbols were works of art that were devoid of religious connotation and did not affect the state’s neutrality." According to the Court of Appeal, S had not been discriminated against on the ground of freedom of conscience and religion; any interference with S's beliefs was "trivial or insubstantial."
While some of the issues before the Supreme Court of Canada involved procedural ones regarding the appeal, the Court was clear that the municipality's practice was unconstitutional. Similar to an analysis under the US Constitution's First Amendment, the Supreme Court of Canada grappled with issues such as hostility to religion and the "slippery slope" of other religious practices:
The prayer recited by the municipal council in breach of the state’s duty of neutrality resulted in a distinction, exclusion and preference based on religion — that is, based on S’s sincere atheism — which, in combination with the circumstances in which the prayer was recited, turned the meetings into a preferential space for people with theistic beliefs. The latter could participate in municipal democracy in an environment favourable to the expression of their beliefs. Although non‑believers could also participate, the price for doing so was isolation, exclusion and stigmatization. This impaired S’s right to exercise his freedom of conscience and religion. The attempt at accommodation provided for in the by‑law, namely giving those who preferred not to attend the recitation of the prayer the time they needed to re‑enter the council chamber, had the effect of exacerbating the discrimination. The Tribunal’s findings to the effect that the interference with S’s freedom of conscience and religion was more than trivial or insubstantial were supported by solid evidence, and deference is owed to the Tribunal’s assessment of the effect of the prayer on S’s freedom of conscience and religion.
Barring the municipal council from reciting the prayer would not amount to giving atheism and agnosticism prevalence over religious beliefs. There is a distinction between unbelief and true neutrality. True neutrality presupposes abstention, but it does not amount to a stand favouring one view over another. Moreover, it has not been established in this case that the prayer is non‑denominational. The Tribunal’s findings of fact instead tend toward the opposite result. Be that as it may, the respondents themselves conceded at the hearing that the prayer is nonetheless a religious practice. Even if it is said to be inclusive, it may nevertheless exclude non-believers. As for the proposed analogy to the prayer recited by the Speaker of the House of Commons, in the absence of evidence concerning that prayer, it would be inappropriate to use it to support a finding that the City’s prayer is valid. Finally, the reference to the supremacy of God in the preamble to the Canadian Charter cannot lead to an interpretation of freedom of conscience and religion that authorizes the state to consciously profess a theistic faith. The preamble articulates the political theory on which the Charter’s protections are based. The express provisions of the Canadian Charter and of the Quebec Charter, such as those regarding freedom of conscience and religion, must be given a generous and expansive interpretation. This is necessary to ensure that those to whom these charters apply enjoy the full benefit of the rights and freedoms, and that the purpose of the charters is attained.
The Court explicitly linked the state's duty of neutrality - - - akin to the First Amendment's (anti-)Establishment Clause - - - to the maintenance of a free and democratic society. "This pursuit requires the state to encourage everyone to participate freely in public life regardless of their beliefs." This principle may have special resonance when one considers the largely French (and Catholic) Quebec as compared to the other largely English (and Protestant) other provinces.
Unlike the United States Supreme Court's opinion in Town of Greece, the Supreme Court of Canada's judgment is not closely divided; only one Justice writes separately to discuss some of the procedural issues, but otherwise concurs. For US ConLawProfs, City of Saguenay is well worth a comparative read.
Monday, March 30, 2015
In a summary order today, the United States Supreme Court listed among the cases denied certiorari the controversial "Cinco de Mayo" case, Dariano v. Morgan Hill Unified School District.
The original controversy began with a claim by students that their constitutional rights were violated when school officials banned their American flag clothing during a Cinco de Mayo celebration. The school officials regulated American flag clothing "in [the] context of ongoing racial tension and gang violence within the school, and after a near-violent altercation had erupted during the prior Cinco de Mayo over the display of an American flag.” The district judge rejected the students' First Amendment and Equal Protection claims. The Ninth Circuit affirmed, and later denied en banc review, over a dissent, and issued an amended panel opinion which added several paragraphs of analysis.
The application of the classic Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) was predictable, but the amended opinion also discussed the “heckler’s veto,” a concept that is in some senses embedded in Tinker's "disruption" standard.
However, with the denial of certiorari, this particular controversy - - - which had often been expressed as allowing a school district to ban the American flag - - - has apparently been decided, at least in the context of this particular school for a particular holiday on a particular year.
However, as the opinion of the Ninth Circuit as amended noted, situations involving displays of the Confederate flag in the school context have been frequently litigated. And this Term, the Court is considering a Confederate flag outside the school context in the "license plate" case just argued last week, Walker v. Texas Sons of Confederate Veterans.
Monday, March 23, 2015
The Court heard oral arguments today in Walker v. Texas Sons of Confederate Veterans involving a First Amendment challenge to the denial of a specialty license plate requested by the Texas Sons of Confederate Veterans.
As we noted when certiorari was granted, the Fifth Circuit's divided opinion, reversing the district judge, found that the denial violated the First Amendment as impermissible viewpoint and content discrimination. License plate schemes have been well-litigated: The Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.
First, there is the issue of whether the specialty license plate had become a traditional public forum. Justice Kennedy seemingly tended toward this view, noting - - - twice - - - that no one goes to parks anymore and so these license plates may be a new public forum for a new era.
Less specifically articulated was whether if there was a limited public forum in the license plates this could have any meaning at all because there were no real standards. Justice Ginsburg quickly asked the Texas Solicitor General, defending the constitutionality of the state scheme, whether it wasn't "nebulous." The number of specialty license plates approved and the very few disapproved was noted several times, again making it seem as if any designation was not at all clear.
The notion of government speech was raised at numerous points, echoing the opinion of Fifth Circuit Judge Jerry Smith who had dissented and contended that the doctrine of government speech articulated in the Court's unanimous Pleasant Grove City v. Summum (2009) controls: there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas.
Yet Justice Sotomayor suggested that this might be "hybrid speech," asking counsel for the Texas Sons of Confederate Veterans whether this might not be the "reverse" of Wooley v. Maynard (1977): why should the State be compelled to put something on its license plates that it disapproves?
That the state might be seen as endorsing problematical messages surfaced repeatedly, including this discussion with counsel for the Texas Sons of Confederate Veterans:
JUSTICE GINSBURG: Suppose suppose the message the the applicant said, we want this design, and the design is a swastika. Is that speech that does does the the whoever is in charge of it of the license plate, do they have to accept - - -
MR. GEORGE: I don't believe the State can discriminate against the people who want to have that design - - -
JUSTICE GINSBURG: So they could have the swastika. And suppose somebody else says, I want to have "Jihad" on my license plate. That's okay, too?
MR. GEORGE: Vegan?
JUSTICE GINSBURG: Jihad.
MR. GEORGE: Jihad. Jihad on the license plate? Can be there is obviously a court of appeal a district court from Ohio in which "Infidels" was held to be the State
JUSTICE KENNEDY: What is your answer in this case as to Justice Ginsburg's hypothetical? Yes or no, must the State put those symbols or messages on the plates at the request of the citizen? Yes or no?
MR. GEORGE: Yes.
This prospect seemed worrisome. But seemingly equally worrisome was the prospect of absolute government discretion manifested by the recurring hypothetical of a government allowing "Vote Republican" but not "Vote Democratic" on the specialty plates, a situation that is arguably consistent with Summum's interpretation of government speech. Perhaps Sotomayor's suggested "hybrid speech" may be a compromise. Or less likely, the Court could further clarify public forum and limited (designated) public forum doctrine.
Friday, March 20, 2015
In a brief filed today in the First Circuit in Conde-Vidal v. Armendariz, the Solicitor General of the Commonwealth of Puerto Rico essentially sided with the appellants and conceded its same-sex marriage ban is unconstitutional.
Recall that several months ago, United States District Judge for the District of Puerto Rico Juan Perez-Gimenez dismissed the constitutional challenge to Puerto Rico's law defining marriage as "man and woman" and refusing recognition to marriages "between persons of the same sex or transexuals." In large part, Judge Perez-Gimenez relied upon Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question."
The challengers appealed to the First Circuit and the Commonwealth's brief "concedes that Baker’s rationale that federal courts lack jurisdiction to entertain these claims for lack of a substantial federal question can no longer be deemed good law."
It is not usual for the Executive Branch of the Commonwealth of Puerto Rico to refuse to defend the constitutionality of legally-enacted statutes. It is even less usual to adopt a somewhat different position at the appellate level than the one espoused before the lower court. But this is not a usual case and neither the law nor common sense requires us to treat it as such.
In a constitutional democracy there are some rights that have been reserved to the People directly and which no government may infringe, regardless of individual or personal views on the matter. “Our obligation [like this Court’s] is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).
Article 68 of the Civil Code of Puerto Rico excludes LGBT couples from the legal entitlements and rights attendant to civil marriage. Thus, the Commonwealth of Puerto Rico acknowledges that the statute in controversy raises substantial constitutional questions anent the constitutional guarantees of equal protection of the laws and substantive due process.
Because Puerto Rico’s marriage ban impermissibly burdens Plaintiffs ́ rights to the equal protection of the laws and the fundamental right to marry, we have decided to cease defending its constitutionality based on an independent assessment about its validity under the current state of the law. However, “i[t] is emphatically the province and duty of the judicial department to say what the law is.” Windsor, 133 S.Ct. 2675, at 2688 (quoting Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1802)), and, since the District Court entered judgment in this case, it is this particular Court’s duty to review the legal conclusions there reached so that they may be brought up to date in accordance with newer developments in this important area of constitutional law.
If History has taught us anything, it is that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence, 579 U.S. at 579. This case represents but another attempt from a politically disadvantaged group of our society to be included within the full scope of the legal and constitutional protections that most of us take for granted. Plaintiffs seek no preferential treatment; only equality. The Executive Branch of the Commonwealth recognizes the LGBT community’s right to equality under the law.
Defendants-Appellees request that this Honorable Court reverse the Judgment of the District Court that dismissed Plaintiffs-Appellants’ complaint for lack of a substantial federal question.
Given this concession, the First Circuit - - - which has not had occasion to rule on a challenge to a "state" same-sex marriage ban - - - is sure to find that Puerto Rico's same-sex marriage ban is unconstitutional, assuming it reaches the issue before the United States Supreme Court decides the issue in the cases presently before it.
Recall that the First Circuit did rule that DOMA, the Congressional statute barring federal recognition of same-sex marriage, was unconstitutional in 2012, before the United States Supreme Court held DOMA unconstitutional in United States v. Windsor, but after the United States Attorney General, Eric Holder, announced the Department of Justice would not defend the constitutionality of DOMA.
Wednesday, March 18, 2015
In its opinion in In re Hong Yen Chang on Admission, the California Supreme Court granted posthumous admission to the bar and reversed its more than a century-old decision in In re Hong Yen Chang 84 Cal. 163 (1890). The case was brought by LawProf Gabriel "Jack" Chin and students at UC-Davis College of Law.
Although Chang had been naturalized and was a lawyer in New York, a combination of the notorious Chinese Exclusion Act, upheld by the United States Supreme Court in Chae Chan Ping v. United States (1889), which prohibited naturalization of Chinese persons and the California requirement that members of the bar be citizens, the 1890 California Supreme Court held that Chang was not a "bona fide" citizen and could thus not be a member of the bar. In discussing the decision, the 2015 California Supreme Court stated:
Understanding the significance of our two-page decision denying Chang admission to the bar requires a candid reckoning with a sordid chapter of our state and national history.
Yet the court's opinion is not only of historic note. In discussing the repudiation of the sordid chapter, the California Supreme Court wrote:
More than a century later, the legal and policy underpinnings of our 1890 decision have been discredited. In 1972, this court unanimously held it was “constitutionally indefensible” to forbid noncitizens to practice law, calling such a ban “the lingering vestige of a xenophobic attitude” that “should now be allowed to join those anachronistic classifications among the crumbled pedestals of history.” (Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 291.) One year later, the high court reached the same conclusion. (In re Griffiths (1973) 413 U.S. 717.) In 2013, our Legislature passed a law making undocumented immigrants eligible for admission to the State Bar. (Bus. & Prof. Code, § 6064, subd. (b).) We thereafter granted admission to an undocumented immigrant who had been brought to the United States as a child, put himself through college and law school, passed the California bar exam, and met the requirement of good moral character. (In re Garcia (2014) 58 Cal.4th 440, 466.) We said “the fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the State Bar, or prevent the individual from taking an oath promising faithfully to discharge the duty to support the Constitution and laws of the United States and California.” (Id. at p. 460.)
While California has allowed noncitizens to be attorneys as the court notes, the issue is pending in other states, including - - - perhaps paradoxically - - - New York.
Tuesday, March 3, 2015
In a per curiam opinion in excess of 130 pages, the Alabama Supreme Court has ordered certain probate judges to 'discontinue the issuance of marriage licenses to same-sex couples' in compliance with a district judge's order and a denial of a stay by the United States Supreme Court.
[UPDATED: Reports state that the controversial Chief Justice Roy Moore recused himself from the ruling, but neither Moore nor recusal seems to be mentioned in the opinion]. The Alabama Supreme Court's opinion per curiam opinion states that "Stuart, Bolin, Parker, Murdock, Wise, and Bryan, JJ., concur," and that "Main, J., concurs in part and concurs in the result," and that "Shaw, J., dissents." Chief Justice Moore is the ninth of the nine justices of the Alabama Supreme Court (pictured below).
The case is styled Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County; In re: Alan L. King, in his official capacity as Judge of Probate for Jefferson County, et al., and is an Emergency Petition for Writ of Mandamus. Justice Greg Shaw's dissent highlights the unusual procedural posture of the case: he concludes that the Alabama Supreme Court does not have original jurisdiction, that the public interest groups (Alabama Policy Institute and Alabama Citizens Action Program) cannot sue in Alabama's name and do not have standing, that the petition for writ of mandamus is procedurally deficient given that there is no lower court opinion, and that the court's opinion improperly rules on the constitutionality of the Alabama marriage laws since that issue is not before it. Justice Shaw concludes:
I believe that this case is not properly before this Court. As the main opinion notes, this case is both unusual and of great public interest; however, I do not see a way for this Court to act at this time. By overlooking this Court's normal procedures; by stretching our law and creating exceptions to it; by assuming original jurisdiction, proceeding as a trial court, and reaching out to speak on an issue that this Court cannot meaningfully impact because the Supreme Court of the United States will soon rule on it; and by taking action that will result in additional confusion and more costly federal litigation involving this State's probate judges, this Court, in my view, is venturing into unchartered waters and potentially unsettling established principles of law.
Shaw's dissent provides a window into the Alabama Supreme Court's lengthy opinion. Much of the opinion concerns the odd procedural posture of the case. The opinion does specifically address the relationship between Alabama and the federal judge's decision by declaring that the "Respondents' Ministerial Duty is Not Altered by the United States Constitution":
The United States District Court for the Southern District of Alabama has declared that Alabama's laws that define marriage as being only between two members of the opposite sex -- what has been denominated traditional marriage -- violate the United States Constitution. After careful consideration of the reasoning employed by the federal district court in Searcy I, we find that the provisions of Alabama law contemplating the issuance of marriage licenses only to opposite-sex couples do not violate the United States Constitution and that the Constitution does not alter or override the ministerial duties of the respondents under Alabama law.
Thus, because the Alabama Supreme Court disagrees, Alabama is not bound by the federal decision. The Alabama Supreme Court's "per curiam" opinion on the constitutionality of the same-sex marriage ban is scholarly, lengthy, and well-reasoned (and perhaps more persuasive than the Sixth Circuit's opinion in DeBoer v. Snyder, to which the United States Supreme Court granted certiorari, and on which the Alabama Supreme Court relies extensively). But this discussion does little to resolve the basic federalism of whether the state is bound by the federal court's judgment. The court's order does include this specific provision, which may engage the issue most directly:
As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.
March 3, 2015 in Courts and Judging, Current Affairs, Federalism, Fourteenth Amendment, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)