Constitutional Law Prof Blog

New York Legislature: Senate Passes Same-Sex Marriage Bill

In a highly anticipated event, this evening the New York State Senate debated and passed "The Marriage Equality Act," 33-29, with religious exemption provisions.

The Act provides in part:

Section 1. This act shall be known and may be cited as  the  "Marriage Equality Act".

S 2. Legislative intent. Marriage is a fundamental human right.  Same

couples  should  have the same access as others to the protections ;responsibilities, rights, obligations, and benefits of civil  marriage. Stable  family  relationships  help  build  a  stronger society. For the welfare of the community and in fairness to all New  Yorkers,  this  act formally  recognizes otherwise-valid marriages without regard to whether the parties are of the same or different sex. It is the intent of the legislature that the marriages of same-sex and different-sex couples be treated equally in all respects under the  law. The  omission  from this act of changes to other provisions of law shall not  be  construed  as  a  legislative  intent  to  preserve  any  legal distinction  between  same-sex  couples  and  different-sex couples with respect to marriage. The legislature intends that all provisions of  law which  utilize  gender-specific  terms  in reference to the parties to a marriage, or which in any other way may be inconsistent with  this  act be  construed  in  a  gender-neutral  manner  or in any way necessary to effectuate the intent of this act.

S  3. The domestic relations law is amended by adding two new sections 10-a and 10-b:

    S 10-a.  Parties to a marriage. 

1. A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are  of the same or different sex.

 2.  No  government  treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating  to  marriage,  whether deriving  from  statute,  administrative  or  court rule, public policy common law or any other source of law, shall differ based on the parties the marriage being or having been of  the  same  sex  rather  than  a different  sex.  When necessary to implement the rights and responsibilities of spouses under the law, all gender-specific  language  or  terms shall  be  construed  in  a gender-neutral manner in all such sources of law.

    S10-b is the religious exemptions and nonseverability amendments here.  In an interesting move, the Senate voted on the amendments before voting on the bill.  A few Senators mentioned the importance of the religious exemptions in determining their affirmative votes.

The bill passed by a narrow margin in the Republican-controlled Senate.  Senator Steven Saland was one of the deciding votes and his statement is here. Governor Cuomo, who actively supported the bill, is expected to sign it. [update: Cuomo signed bill].  New York will then become the sixth state in the United States that currently recognizes same-sex marriage as a legal relationship.  New York would join Massachusetts, Connecticut, Vermont, New Hampshire, and Iowa, as well as the District of Columbia.  California and Maine had legal same-sex marriage for a limited time; California's Proposition 8 limiting marriage to opposite sex couples was declared unconstitutional by a federal judge, but that ruling was stayed and the case is presently on appeal. 

 

RR
[image via]

New York Assembly Approves Religious Exemption to NY Same-Sex Marriage Law

NY Assembly approved an amendment sent by the Senate regarding religious exemptions for the same-sex marriage bill that the New York Senate is expected to vote on this evening. UPDATE:Senate passed bill.

The proposed amendment provides:

 

2011-2012 Regular Sessions I N ASSEMBLY June 24, 2011

 Introduced by M. of A. O'DONNELL -- (at request of the Governor) -- read
 once and referred to the Committee on Judiciary
 AN  ACT  to amend the domestic relations law, in relation to the ability
 to marry; and to amend a chapter of the laws  of  2011,  amending  the
 domestic  relations  law relating to the ability to marry, as proposed
 in legislative bill number A.  8354,  in  relation  to  the  statutory
 construction  of such chapter; and repealing certain provisions of the
 domestic relations law relating to parties to a marriage
 THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM
 BLY, DO ENACT AS FOLLOWS:
Section  1. 
Section 10-b of the domestic relations law, as added by a
 chapter of the laws of 2011, amending the domestic relations law  relat
 ing  to  the ability to marry, as proposed in legislative bill number A.
 8354, is REPEALED and a new section 10-b is added to read as follows:

 S 10-B. RELIGIOUS EXCEPTION. 1. NOTWITHSTANDING ANY  STATE,  LOCAL  OR
 MUNICIPAL LAW, RULE, REGULATION, ORDINANCE, OR OTHER PROVISION OF LAW TO
 THE  CONTRARY,  A RELIGIOUS ENTITY AS DEFINED UNDER THE EDUCATION LAW OR
 SECTION TWO OF THE RELIGIOUS CORPORATIONS LAW, OR A CORPORATION INCORPO
 RATED UNDER THE BENEVOLENT ORDERS LAW OR  DESCRIBED  IN  THE  BENEVOLENT
 ORDERS  LAW  BUT  FORMED  UNDER  ANY  OTHER  LAW  OF  THIS  STATE,  OR A
 NOT-FOR-PROFIT CORPORATION OPERATED,  SUPERVISED,  OR  CONTROLLED  BY  A
 RELIGIOUS CORPORATION, OR ANY EMPLOYEE THEREOF, BEING MANAGED, DIRECTED,
 OR SUPERVISED BY OR IN CONJUNCTION WITH A RELIGIOUS CORPORATION, BENEVO
 LENT  ORDER, OR A NOT-FOR-PROFIT CORPORATION AS DESCRIBED IN THIS SUBDI
 VISION, SHALL NOT  BE  REQUIRED  TO  PROVIDE  SERVICES,  ACCOMMODATIONS,
 ADVANTAGES,  FACILITIES,  GOODS,  OR PRIVILEGES FOR THE SOLEMNIZATION OR
 CELEBRATION OF A MARRIAGE. ANY SUCH REFUSAL TO PROVIDE SERVICES,  ACCOM
 MODATIONS, ADVANTAGES, FACILITIES, GOODS, OR PRIVILEGES SHALL NOT CREATE
 ANY  CIVIL  CLAIM  OR  CAUSE  OF  ACTION OR RESULT IN ANY STATE OR LOCAL
 GOVERNMENT  ACTION  TO  PENALIZE,  WITHHOLD  BENEFITS,  OR  DISCRIMINATE
 AGAINST  SUCH  RELIGIOUS CORPORATION, BENEVOLENT ORDER, A NOT-FOR-PROFIT
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD12066-08-1
        A. 8520                             2
 CORPORATION OPERATED, SUPERVISED, OR CONTROLLED BY  A  RELIGIOUS  CORPO
 RATION,  OR  ANY EMPLOYEE THEREOF BEING MANAGED, DIRECTED, OR SUPERVISED
 BY OR IN CONJUNCTION WITH A RELIGIOUS CORPORATION, BENEVOLENT ORDER,  OR
 A NOT-FOR-PROFIT CORPORATION.
 2.  NOTWITHSTANDING  ANY  STATE, LOCAL OR MUNICIPAL LAW OR RULE, REGU
 LATION, ORDINANCE, OR OTHER PROVISION OF LAW TO THE CONTRARY, NOTHING IN
 THIS ARTICLE SHALL LIMIT OR DIMINISH THE RIGHT, PURSUANT TO  SUBDIVISION
 ELEVEN  OF  SECTION  TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW, OF ANY
 RELIGIOUS OR DENOMINATIONAL INSTITUTION OR ORGANIZATION, OR  ANY  ORGAN
 IZATION  OPERATED FOR CHARITABLE OR EDUCATIONAL PURPOSES, WHICH IS OPER
 ATED, SUPERVISED OR CONTROLLED BY OR  IN  CONNECTION  WITH  A  RELIGIOUS
 ORGANIZATION, TO LIMIT EMPLOYMENT OR SALES OR RENTAL OF HOUSING ACCOMMO
 DATIONS  OR ADMISSION TO OR GIVE PREFERENCE TO PERSONS OF THE SAME RELI
 GION OR DENOMINATION OR FROM TAKING SUCH ACTION AS IS CALCULATED BY SUCH
 ORGANIZATION TO PROMOTE THE RELIGIOUS PRINCIPLES FOR WHICH IT IS  ESTAB
 LISHED OR MAINTAINED.
 3.  NOTHING  IN THIS SECTION SHALL BE DEEMED OR CONSTRUED TO LIMIT THE
 PROTECTIONS AND EXEMPTIONS OTHERWISE PROVIDED TO RELIGIOUS ORGANIZATIONS
 UNDER SECTION THREE OF ARTICLE ONE OF THE CONSTITUTION OF THE  STATE  OF
 NEW YORK.
 S  2.  Subdivision 1-a of section 11 of the domestic relations law, as
 added by a chapter of the laws of 2011, amending the domestic  relations
 law  relating  to  the ability to marry, as proposed in legislative bill
 number A.8354, is amended to read as follows:
    1-a. A refusal by a clergyman or minister as defined in section two of
 the religious corporations law, or Society for Ethical Culture leader to
 solemnize any marriage under this subdivision shall not create  a  civil
 claim  or  cause  of  action  OR RESULT IN ANY STATE OR LOCAL GOVERNMENT
 ACTION TO PENALIZE, WITHHOLD BENEFITS OR DISCRIMINATE AGAINST SUCH CLER
 GYMAN OR MINISTER.
 S 3. A chapter of the laws of 2011, amending  the  domestic  relations
 law  relating  to  the ability to marry, as proposed in legislative bill
 number A. 8354, is amended by adding  a  new  section  5-a  to  read  as
 follows:
S 5-A. THIS ACT IS TO BE CONSTRUED AS A WHOLE, AND ALL PARTS OF IT ARE
 TO  BE  READ  AND CONSTRUED TOGETHER.   IF ANY PART OF THIS ACT SHALL BE
 ADJUDGED BY ANY COURT OF  COMPETENT  JURISDICTION  TO  BE  INVALID,  THE
 REMAINDER  OF  THIS  ACT SHALL BE INVALIDATED.   NOTHING HEREIN SHALL BE
 CONSTRUED TO AFFECT THE PARTIES' RIGHT TO APPEAL THE MATTER.
 S 4. This act shall take effect on the same date as  such  chapter  of
 the laws of 2011, takes effect.

House Rejects Support of President on Libya, but Declines to Defund Operations

The House of Representatives voted today on two key measures relating to on-going military operations in Libya.  In a rebuff to the administration, the House voted 123 to 295 against House Joint Resolution 68, a measure that would have "authorized" continued, but limited, use of U.S. Armed Forces in Libya (but would have also opposed the use of ground troops there).  But the House also voted 180 to 238 against House Resolution 2278, a measure that would have defunded Libyan operations.

 The actions, alone or together, only reflect the (mixed) sense of the House on the military operations in Libya; they neither confirm nor restrict the President's authority.

The spirited debate on the measures in the House today came just one week after Charlie Savage reported that administration attorneys differed on the President's authority, and that the President seemed to do an end-run around the traditional practice of receiving legal advice (through the OLC) in order to cherry-pick the advice he wanted.  The administration's position--that the military actions in Libya are not "hostilities," and that they are therefore not covered by the reporting and withdrawal requirements in the War Powers Resolution--has been hotly controversial, drawing comparisons to practices in the Bush administration that led to advice in the torture memos, e.g. 

SDS

No State Remedy for Plaintiffs Harmed by Generic Drugs

A sharply divided Supreme Court ruled (5-4) today in PLIVA, Inc. v. Mensing that federal prescription drug laws preempt plaintiffs' state failure-to-warn claims against a generic drug manufacturer.  The ruling comes just two years after the Court ruled in Wyeth v. Levine that similar federal law doesn't preempt a plaintiff's state failure-to-warn claims against a brand-name drug manufacturer.  As a result, the cases together mean that a plaintiff injured by a brand-name manufacturer can sue in state court, while a plaintiff injured by a generic manufacturer can't--a bizaare result, even by the Court's reckoning, and a significant one given generics' dominant place in the prescription drug market.

The difference, says the majority, is how federal law treats generic manufacturers versus brand-name manufacturers.  Justice Thomas wrote for Chief Justice Roberts and Justices Scalia, Kennedy, and Alito that federal law governing generic labels doesn't allow generic manufacturers to unilaterally change their label.  Instead, a generic manufacturer has to petition the FDA for a change in label.  In contrast, federal law governing brand-name labels allows a brand-name manufacturer to unilaterally enhance a label (to account, e.g., for newly discovered harms from the drug).

 

According to Justice Thomas, this means that generic manufacturers can't simultaneously comply with federal law (prohibiting unilateral changes to their labels) and state failure-to-warn standards (requiring them to change their labels).  In contrast, brand-name manufacturers can comply with federal law (allowing unilateral changes) and state failure-to-warn standards (requiring them to change their labels).  In the former case, as in Mensing, federal law preempts; in the latter case, as in Wyeth, it doesn't. 

Justice Thomas wrote that the mere possibility that the FDA would grant a generic manufacturer's petition for a label change isn't enough to show that the manufacturer could comply with both federal law and state standards. Thus he wrote that "[t]he question for [impossibility preemption] is whether the private party could independently do under federal law what state law requires of it."  Op. at 13.

But this is a significant change from the way the Court analyzed preemption in Wyeth--in both result and method.  In Wyeth, the defendant brand-name manufacturer had a similar kind of possibility of complying with both federal law and state standards: federal law allowed the FDA to disapprove a brand-name manufacturer's label change, even as it allowed the manufacturer to unilaterally make the change.  In other words, federal law takes away from both generic manufacturers and brand-name manufacturers the ability to "independently do under federal law what state law requires of it."  They both lack independence; it's just a different degree of independence.  But by setting this new preemption standard at "independence," the Court puts a thumb on the scale in favor of federal preemption whenever there's any intervening third party (like the FDA in both Mensing and Wyeth).  This changes the traditional presumption against federal preemtion in impossibility preemption cases and tilts in favor of manufacturers (and against state tort plaintiffs).

Justice Thomas would have gone even farther.  His opinion included a section appealing to the original uses of clauses like the Supremacy Clause, in particular the phrase "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."  Justice Thomas wrote that this phrase was a non obstante provision under 18th century usage, and "suggests that federal law should be understood to impliedly repeal conflicting state law," op. at 15, underscoring his more narrow textual approach.  But Justice Thomas had just four votes for this section of his opinion; Justice Kennedy declined to join it.

Justice Sotomayor wrote a lengthy and critical dissent for herself and Justices Ginsburg, Breyer, and Kagan.  She appealed to congressional purpose--the traditional touchstone for preemption analysis--and looked to text, context, and legislative history to conclude that federal law did not preempt the plaintiffs' state failure-to-warn claims.

Coming just two years after Wyeth, Mensing marks a significant shift in the Court's approach to impossibility preemption, and maybe to preemption more generally.  Wyeth was a 6-3 ruling, with both Justices Kennedy and Thomas agreeing that federal law did not preempt.  (They're the only two Justice to switch.)  In Wyeth, Justice Thomas wrote a detailed concurrence, arguing for a more limited, textual approach to preemption doctrine.  His approach came to full fruition in his majority opinion in Mensing, although Justice Kennedy's refusal to join the strongest portion of his opinion denied him a majority for his non obstante theory.  Now it appears that the narrow, textual approach (in contrast to Justice Sotomayor's more traditional approach) has five votes on the Court, at least in cases where a defendant can't "independently do under federal law what state law requires of it."  But as discussed above, that standard would also sweep in Wyeth, unless there's some more subtle line-drawing that's not entirely obvious from today's ruling.  (Just to be clear: the Court today did not overturn Wyeth.)

But in the end, this case, like all preemption cases, gives Congress the last word.  And as mentioned above, even Justice Thomas (for the Court) recognizes the bizaare result here and in some places comes close to suggesting that Congress revisit this differential treatment.  In the meantime, prescription drug consumers are well advised to pay attention to the drugs they get from the pharmacy: A generic may come at a lower out-of-pocket cost, but it now also comes with a significantly higher opportunity cost of suing the manufacturer in state court when a consumer is harmed because of a bad label.

SDS

TIME's State of the Constitution

Time Magazine this week is running a cover story on the state of the Constitution.  Managing Editor Richard Stengel writes on constitutional debates around four hot issues: the President's authority to use U.S. forces in Libya; federal healthcare reform; the debt ceiling; and immigration. 

 
 

Coverage also includes a survey, with some interesting results:

• 64% agree that "[a] woman should have the right to terminate pregnancy in its first few months."
• 62% say that the Fourteenth Amendment shouldn't be amended to do away with birthright citizenship.
• 50% say that the President lacks authority "to involve the military in Libya without congressional approval, even if the troops are in a supporting role on a NATO mission."

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IMS v. Sorrell: Pharmaceutical Speech Protected by Court - Opinion Analysis

As expected from the oral argument in April, the Court's opinion today in IMS v. Sorrell finds Vermont's statute prohibiting the practices that allow pharmaceutical detailing to be unconstitutional. 

The opinions can be said to answer this query: When is a commercial speech regulation not a commercial speech regulation? 

Justice Kennedy, writing for the Court and joined by five other Justices, found the Vermont statute not to be a commercial speech regulation.  Instead, the Court applied heightened scrutiny because:

On its face, Vermont’s law enacts content- and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information. The provision first forbids sale subject to exceptions based in large part on the content of a purchaser’s speech. For example, those who wish to engage in certain “educational communications,” may purchase the information. The measure then bars any disclosure when recipient speakers will use the information for marketing. Finally, the provision’s second sentence prohibits pharmaceutical manufacturers from using the information for marketing. The statute thus disfavors marketing, that is, speech with a particular content. More than that, the statute disfavors specific speakers, namely pharmaceutical manufacturers. As a result of these content- and speaker-based rules, detailers cannot obtain prescriber-identifying information, even though the information may be purchased or acquired by other speakers with diverse purposes and viewpoints.

Opinion at 8.  The Court rejects the commercial speech doctrine because the Vermont statute "does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers."  Kennedy then provides a rhetorical flourish:

The Constitution “does not enact Mr. Herbert Spencer’s Social Statics.” Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting). It does enact the First Amendment.

Opinion at 12.  The Court also rejects the argument that datamining of information is not speech.  While in a usual case, "it is all but dispositive to conclude that a law is content-based and, in practice, viewpoint-discriminatory," the Court nevertheless spends several pages discussing and rejecting the arguments of Vermont regarding its interests and the means chosen.  The opinion does provide a glimpse of possible responses by states wishing to curb pharmaceutical company practices while respecting "privacy" and the First Amendment:

The capacity of technology to find and publish personal information, including records required by the government, presents serious and unresolved issues with respect to personal privacy and the dignity it seeks to secure. In considering how to protect those interests, however, the State cannot engage in content-based discrimination to advance its own side of a debate. If Vermont’s statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position. Here, however, the State gives possessors of the information broad discretion and wide latitude in disclosing the information, while at the same time restricting the information’s use by some speakers and for some purposes, even while the State itself can use the information to counter the speech it seeks to suppress. Privacy is a concept too integral to the person and a right too essential to freedom to allow its manipulation to support just those ideas the government prefers.

In dissent, Justice Breyer, joined by Justices Ginsburg and Kagan, argues that the Vermont statute regulates commercial speech.  It should have therefore been evaluated under Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980).  Under that standard, the statute survives the “intermediate” First Amendment test that allows government laws to significantly restrict speech, as long as they also “directly advance” a “substantial” government interest that could not “be served as well by a more limited restriction.” 

RR
[image via]

 

Geert Wilders Found Not Guilty of Hate Speech

A controversial prosecution in The Netherlands of Dutch conservative Geert Wilders for hate speech has ended in an aquittal of Wilders.  Wilders has compared Islamists to Nazis, called for banning the Koran in the same way that the Dutch ban Mein Kampf, and juxtaposed images of September 11 destruction of the World Trade Towers in NYC with the Koran.  Some argued that Wilder’s statements have incited hatred and cross a line, constituting “fighting words” and “insults” beyond normal discourse tolerable in a multicultural democracy.

The Dutch judge found Wilder's statements rude, but not criminal according to reports in the BBC, NYT, and Aljazeera.   Here is a news report from Russia Today:

 

 

 

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Torture Suit Against Rumsfeld Dismissed

A three-judge panel of the D.C. Circuit ruled on Tuesday in Arkan v. Rumsfeld that former Secretary of Defense Donald Rumsfeld enjoyed qualified immunity against the plaintiffs' Bivens claims that he formulated and implemented policies of torture at Abu Ghraib and other military facilities in Iraq and Afghanistan in violation of their Fifth Amendment Due Process and Eighth Amendment rights.  The ruling follows the Circuit's earlier ruling in Rasul v. Myers (Rasul II) and together with that case makes it nearly impossible for an alien plaintiff to bring a constitutional claim against a government official for torture at an overseas facility.  (The case may be closer for torture at Guantanamo Bay, however.)

 

The panel ruled unanimously that it was not clearly established in 2004, the time of the actions, that the Fifth and Eighth Amendments applied to aliens detained abroad:

As it was not clearly established in 2004 that the Fifth and Eighth Amendments apply to aliens detained at Guantanamo Bay--where the Supreme Court has since held the Suspension Clause applies--it plainly was not clearly established in 2004 that the Fifth and Eighth Amendments apply to aliens held in Iraq and Afghanistan--where no court has held any constitutional right applies.

Op. at 14. 

The question--whether it was clearly established that Rumsfeld's actions violated the Constitution--is one of two questions courts ask to determine whether an official enjoys qualified immunity.  See Saucier v. Katz; Pearson v. Callahan.  The other question is whether the actions actually violated the Constitution.  The Supreme Court in Pearson held that courts may consider the questions in either order; and if a court rules that it wasn't clearly established at the time, the official gets qualified immunity regardless of whether the actions actually violated the Constitution. 

The panel here considered the former question first--whether it was clearly established at the time--and declined to rule on the other question.  The panel wrote that deciding whether the actions actually violated the Constitution would have been an academic exercise and potentially harmful to prevailing defendants, because it may prevent them from appealing. 

The Supreme Court recently ruled in Camreta v. Greene that a defendant who gets qualified immunity because a right isn't clearly established can nevertheless appeal to the Supreme Court, which has statutory jurisdiction to take an appeal "of any party."  The Court didn't rule on whether a "prevailing" defendant can also appeal to a circuit court, but the panel here seemed to think not.  In any event, the panel here certainly could have ruled on whether Rumsfeld's actions actually violated the Constitution: Pearson allows it; and under Camreta, Rumsfeld clearly could have appealed that to the Supreme Court (assuaging the panel's concern about lack of appealability).  (A principal reason for a court to rule on whether an action actually violates the Constitution is to give officials guidance about their future behavior--what's constitutional, and what's not.)

The upshot is that we don't have a ruling on whether Rumsfeld's actions actually violated the Fifth and Eighth Amendments--and therefore no "declaratory" judgment one way or the other, and no guidance for officials in the future.

The panel also ruled that prudential considerations--that cases like this against military officials would disrupt the war effort--also counseled against a Bivens claim.  The analysis here was sparse, but it puts belts over the suspenders to ensure that no like cases move past a motion to dismiss.

(The panel split 2-1 on whether the plaintiffs could bring an Alien Tort Statute claim.  The majority said no: The ATS claim transforms into a Federal Tort Claims Act claim, because Rumsfeld's actions were "incidental to [his] legitimate employment duties."  Op. at 20.  As an FTCA claim, the plaintiffs had to exhaust administrative remedies.  They didn't, so the case is dismissed.  Judge Edwards, in a lengthy dissent disagreed.)

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D.C. Circuit Rejects Omar's "Refashioned" Habeas Claim

A three-judge panel of the D.C. Circuit ruled Tuesday in Omar v. McHugh that an American citizen held in military custody in Iraq has no right to judicial review of conditions in Iraq, the country where he is to be transferred.  The majority thus rejected his habeas petition; Judge Griffith, in concurrence, would have reached the merits and rejected them.

Petitioner Omar is the same Omar who was part of Munaf v. Geren, the 2008 Supreme Court case holding that federal courts may not exercise habeas jurisdiction to enjoin the government from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign for criminal prosecution.  In Munaf, Omar argued that he would be tortured if transferred to Iraqi authorities, that he therefore had a right under "the substantive component of the Due Process Clause" against transfer, and that the courts had the authority and duty to enforce that right by inquiring into his likely treatment if transferred.  The Court rejected these arguments.

Omar came back with new statutory and constitutional arguments, but the D.C. Circuit rejected them, as well.  Omar argued the Foreign Affairs Reform and Restructing Act of 1998 (FARR), which implements Article 3 of the Convention Against Torture, granted him a right to judicial review.  But the court ruled that the FARR provides judicial review of conditions in the receiving country only in the immigration context, for aliens seeking judicial review of removal, and not for military transferees like Omar.  (The REAL ID Act of 2005 made the limited scope of judicial review even clearer.)  The majority thus ruled that neither the FARR nor the REAL ID Act provided for judicial review here.

As to the Constitution, Omar argued that habeas alone gave him the right to judicial review (whereas the Munaf Court held only that he had no right under habeas and due process), and that he has a substantive due process right to judicial review (whereas the Munaf Court held only that he had no procedural due process right), among other arguments.  The court rejected them all, writing that his attempts to distinguish Munaf failed, that his attempts to craft a right out of constitutional and statutory combinations failed, and that the tradition of habeas in like circumstances cut against him.  ("Those facing extradition traditionally have not been able to block transfer based on conditions in the receiving country. . . .  Similarly, military transferees traditionally have not been able to raise habeas claims to prevent transfer based on conditions in the receiving country."  Op. at 11.)  The majority thus rejected Omar's habeas claim (although it reminded us that Congress could extend habeas and craft judicial review of conditions in a receiving country for military transferees (in addition to the already existing right for alien transferees), if it wanted).

Judge Griffith would have granted habeas and heard the merits, because "the FARR Act 'trigger[s] constitutional habeas' by giving Omar a colorable claim that his transfer to Iraqi authorities would be unlawful.  When an American citizen is in U.S. custody, the Constitution's guarantee of habeas corpus entitles him to assert any claim that his detention or transfer is unlawful."  Griffith, concurring, at 1.  But Judge Griffith nevertheless would have denied relief:

Omar cannot be "return[ed]" to Iraq for a simple reason: "he is already there."  The U.S. military arrested him in Iraq, and he was subsequently convicted in an Iraqi court for violating Iraqi law.  He now seeks to use the FARR Act to prevent the Iraqi authorities from bringing him to justice, which would effectively "defeat the criminal jurisdiction of a foreign sovereign."  Because there is nothing in the FARR Act to suggest that Congress could have intended such a result, I concur in the majority's judgment.

Griffith, concurring, at 8 (citations to Munaf omitted).

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Ban on Chalk Protest at White House Upheld

A three-judge panel of the D.C. Circuit ruled Tuesday in Mahoney v. Doe that a preacher had no First Amendment right to protest the President's position on abortion and the anniversary of Roe v. Wade by "chalking" the street in front of 1600 Pennsylvania Avenue.

 

Reverend Patrick Mahoney sought permission to chalk the street in front of the White House in protest of abortion.  The District government denied permission, however, because the planned protest violated the District's "Defacement Statute," which prohibits, among other things, rubbing or covering public property.

Analyzing Mahoney's claim first as an as-applied challenge, the court ruled that the street at 1600 Pennsylvania Avenue is, indeed, a public forum.  But it also ruled that the District's law is content neutral, based on a significant governmental interest (keeping its property free of blight), and leaves open ample alternatives for communication.  As such, the law doesn't violate the Speech Clause as applied to Mahoney.

The court rejected out-of-hand Mahoney's claim that the law was facially unconstitutional.  It wrote that Mahoney didn't even bother to argue (in the spirit of overbreadth) that the law would ever apply in violation of the First Amendment.

The court also rejected Mahoney's claim that the District's denial of permission violated the Religious Freedom Restoration Act.

The ruling is hardly surprising.  As Judge Kavanaugh wrote in concurrence:

No one has a First Amendment right to deface government property.  No one has a First Amendment right, for example, to spray-pain the Washington Monument or smash the windows of a police car.

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Florida Public Employees Update: State and Federal Constitutional Complaints

A controversial Florida statute, spearheaded by Governor Rick Scott, mandating state employees to contribute 3% to their pension funds is the subject of a complaint filed in state court.

The complaint contends that the legislative change violates the Florida Constitution: the contract clause, Article I, section 10;  the takings clause, Article X, section 6; and the right to collectively bargain, Article I section 6. 

The Article I, section 6 claim is based on Florida's "right to work" constitutional provision:

The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.

 Earlier this month, Governor Scott suspended his executive order relating to a different right of public employees, a right to be free from unreasonable searches under the Fourth Amendment.  The executive order provided for mandatory random drug testing; public employees filed a complaint and request for preliminary injunction in federal court in Miami, but there has not yet been a ruling.

 RR

 

More on Legality of Libyan Campaign

President Obama has come under attack again for military action in Libya, this time in response to Charlie Savage's report in the New York Times on Friday that he bipassed ordinary processes and selectively adopted legal advice from top administration lawyers on the legality of the action.  (We last posted here, when the administration released its report, United States Activities in Libya, briefly outlining its legal position.)

Bruce Ackerman criticized the process in the NYT; Jack Goldsmith criticized it on Lawfare; and Jack Balkin criticized it on Balkinization.  The common theme: President Obama sidestepped the OLC, and cherry-picked advice from top administration lawyers, on the question whether the Libyan campaign was a "hostility," thus triggering the War Powers Resolution--and he shouldn't have.  (The one publicly available OLC memo on the Libyan campaign carefully avoids the question.)

According to Savage, the acting head of the OLC and chief Pentagon lawyer agreed that U.S. military activities in Libya constituted "hostilities" under the WPR; if so, President Obama would have had to get congressional approval or terminate the activities.  But the White House counsel and senior State Department lawyer disagreed: they said that U.S. military activities in Libya were not "hostilities" under the WPR; if so, the WPR wouldn't apply, and President Obama would neither have to gain congressional approval nor terminate the activities.  According to Savage, President Obama relied upon the latter advice, not even asking OLC for a formal opinion on the question, forum shopping among top administration lawyers and contravening standard executive branch practice (in which the OLC collects the views of different agencies and lawyers and then arrives at its own view of the best interpretation of the law).

Critics compare the process to the legal shenanigans in the Bush administration that resulted, e.g., in the torture memos. 

Nothing requires the President to agree with the legal advice of the OLC, or to seek that Office's advice alone.  But through custom and practice, Presidents have turned to the Office for the definitive legal position of the executive branch.  President Obama's selective advice-seeking certainly appears to contravene that custom and practice.  That (alone) doesn't make the President's action in Libya illegal.  (The legality of the action is independent of the advice or process the President relied upon.)  But it does raise the suggestion that the President has cherry-picked advice to get the result he wanted--exactly the problem that led to bad legal opinions in the Bush administration, just as President Obama's critics claim.

At the same time, House Speaker John Boehner announced that he will introduce two competing resolutions on Libya, one to authorize continued limited activities (using the language of Senator McCain's resolution in the Senate), and the other to require U.S. withdrawal under the WPR.  The move is clearly intended to force the House to adopt a position on Libya and to put House members on record.  But that's all it will do, at least for now.

SDS

Right to Process, but No Absolute Right to Counsel in Civil Contempt Proceedings

The Supreme Court ruled on Monday in Turner v. Rogers that a father who owes back child support has no absolute right to counsel in a civil contempt proceeding, even when it results in his incarceration.  But the Court also ruled (5-4) that the procedures in this case--in which the father had no attorney and in which the civil contempt court did not use adequate safeguards for the father--violated the Fourteenth Amendment Due Process Clause.

The case is an addition to the Court's civil right-to-counsel jurisprudence and its procedural due process jurisprudence, but a narrow one.  The ruling goes to lengths to distinguish right to counsel in criminal cases (even criminal contempt) from right to counsel in civil cases (even when they may result in detention or incarceration, as here), underlining its holding that a poor civil litigant (unlike a poor criminal defendant) doesn't have an absolute right to counsel even when he or she faces detention or incarceration.  But at the same time, the Court made clear that state courts must use some reasonable safeguards, even if short of counsel, to protect the significant interest of a civil defendant in avoiding detention.  (A portion of the case reads like an instruction manual for state courts on these safeguards.)  And the Court was careful to point out that its ruling here applies only when the opposing party is an unrepresented private person, not the state itself (with its attorneys).  In short, the ruling means that state courts don't always have to appoint counsel for poor defendants in civil contempt proceedings that may result in detention, but that they do have to provide some meaningful safeguards to protect that defendant's significant interest in avoiding detention. 

 

Justice Breyer, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan, wrote that Petitioner Turner was not necessarily entitled to appointed counsel in his civil contempt proceeding for failure to pay child support, even when his civil contempt landed him in detention.  Justice Breyer applied the familiar procedural due process balancing test in Mathews v. Eldridge and held that while Turner's interest (avoiding detention) argues strongly in favor of appointed counsel, three considerations counter-balanced his interest.  First, the right procedures can ensure that the key question, a defendant's ability to pay child support (and therefore the defendant's civil contempt for not paying), is "sufficiently straightforward to warrant determination prior to providing a defendant with counsel . . . ."  Op. at 13.  Second, often the opposing party in civil contempt proceedings is also unrepresented by counsel (as was the case here); when this happens, the parties are equally situated, and appointed counsel would only lead to an asymmetry.  Finally, civil contempt courts can protect against an erroneous detention by using safeguards, like notice to the defendant that ability to pay is a key issue, a form to collect relevant financial information, an opportunity for the defendant to respond to questions about ability to pay, and "an express finding by the court that the defendant has the ability to pay."  Op. at 14.

The majority ruled that these safeguards weren't in place here, and so Turner's detention violated Due Process.  The Court remanded the case, suggesting that the state courts simply adopt the safeguards.

Justice Thomas, joined by Chief Justice Roberts and Justices Scalia and Alito, dissented.  Justice Thomas argued that the Fourteenth Amendment does not provide a right to appointed counsel for poor defendants facing incarceration in civil contempt proceedings.  Justice Thomas wrote that neither the original understanding nor the Court's recent jurisprudence supported a right to counsel in civil contempt proceedings.  (The portion of Justice Thomas's opinion on original understanding included this: "Moreover, as originally understood, the Sixth Amendment guaranteed only the 'right to employ counsel, or to use volunteered services of counsel'; it did not require the court to appoint counsel in any circumstance."  Op. at 2 (citing Justice Scalia's dissent in Padilla v. Kentucky). Chief Justice Roberts and Justice Alito did not join the portion of Justice Thomas's opinion on original understanding.)  Justice Thomas also wrote that the adequacy of the procedures (and the safeguards) came up late and were outside the question presented (which was limited to the right-to-counsel issue).

We've covered civil right-to-counsel issues, or "Civil Gideon," most recently here, here, and here.

SDS

The Right to Petition: Borough of Duryea v. Guarnieri Opinion Analysis

The last two clauses of the First Amendment  - - - the right to peaceably assemble and the right to petition the government for redress of grievances - - - have long been the flotsam of the First Amendment. 

The Court's opinion today in Borough of Duryea v. Guarnieri involving the right to petition does little to change that.  

The opinion, authored by Justice Kennedy, does express some grand sentiments about the Petition Clause:  it traces its origins to the Magna Carta, 1215, which not only confirmed the right of barons to petition the King, but was King John's response to a petition.  The right to petition is a right "essential to freedom."  Yet ultimately, the Court subjugates the Petition Clause to the Speech Clause:

It is not necessary to say that the two Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition sharesubstantial common ground. This Court has said that the right to speak and the right to petition are “cognate rights.”

At issue is whether a public employee who was dismissed for filing a union grievance was protected by the Petition Clause.  The Court reversed the Third Circuit and held that because the employee speech would fail the "matter of public concern" requirement under the Speech Clause, it similarly failed to make a claim under the Petition Clause:

The framework used to govern Speech Clause claims by public employees, when applied to the Petition Clause,will protect both the interests of the government and the First Amendment right. If a public employee petitions as an employee on a matter of purely private concern, the employee’s First Amendment interest must give way, as it does in speech cases.

 Justice Scalia concurred and dissented, articulating two disagreements.  First, he found it "doubtful" that the Petition Clause includes a lawsuit.  Instead, he argues from an originalist stance that it includes only petitions directed at legislative and executive branches, even as he acknowledges that some scholars disagree.  Justice Thomas' separate concurrence also states that the original meaning of the Petitions Clause does not include lawsuits.

Second, "and of greater practical consequence" for Justice Scalia, he disagrees with "the Court’s decision to apply the “public concern” framework of Connick v. Myers, 461 U. S. 138 (1983), to retaliation claims brought under the Petition Clause."  He argues that the Court correctly holds that the Speech Clause and Petition Clause are not co-extensive, but then the Court goes on to treat them identically and to "shoehorn" the public concern doctrine into the Petition Clause.  For Scalia, this is especially misguided because "petitions to address private grievances were such a high proportion of petitions at the founding - - - a proportion that is infinitely higher if lawsuits are considered to be petitions—it is ahistorical to say that petitions on matters of public concern constitute 'core petitioning activity.' "

However, whether the opinion is ahistorical or not, the Petition Clause has certainly not been expanded in Borough of Duryea v. Guarnieri.

RR
[image: Petition from the citizens of NJ to Congress to criminalize lynching, 1900, via]

 

Judge-Made Public Nuisance Law Displaced by Clean Air Act

The Supreme Court today ruled (8-0, Justice Sotomayor recused) that the federal Clean Air Act displaces the federal common law of nuisance in a case brought by several states, New York City, and private land trusts against private fossil-fuel fired power plants and the Tennessee Valley Authority--some of the largest emitters of carbon dioxide in the United States.

The ruling means that plaintiffs claiming a harm from greenhouse gas emissions must look to the Clean Air Act, and not to federal common law, for a remedy.

Justice Ginsburg wrote for the Court in American Electric Power v. Connecticut that the Clean Air Act "speaks directly" to the plaintiff's federal common law claim and therefore displaces it:

We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.  [Massachusetts v. EPA] made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act.  And we think it equally plain that the Act "speaks directly" to emissions of carbon dioxide from the defendants' plants.

Op. at 10.

But the plaintiffs argued--and the Second Circuit agreed--that the Clean Air Act and EPA regulations couldn't displace their common law public nuisance claim, because the EPA hadn't yet regulated the defendants' emissions.  It doesn't matter, says the Court; judges shouldn't be making policy in areas where Congress has acted and delegated authority to regulate:

It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions.  The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions.  Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.  Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located.  Rather, judges are confined by a record comprising the evidence the parties present.  Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.

Op. at 14-15.

The Court also held that the plaintiffs had standing.  The Court divided equally on standing and thus upheld the Second Circuit's ruling that the plaintiffs had standing.  It's no surprise that the plaintiffs' theory of standing--the same theory that plaintiffs successfully advocated in Massachusetts--is controversial among the Justice: A sharply divided Court ruled (5-4) in Massachusetts that states had standing to sue the EPA to challenge the agency's denial of their petition to regulate greenhouse gases.  Chief Justice Roberts wrote the dissent in Massachusetts, joined by Justices Scalia, Thomas, and Alito.  The Massachusetts ruling is as divisive now as it was then.  (Justice Sotomayor was on the Second Circuit panel, but she did not participate in the ruling, because she had by then been elevated and the other two panel judges agreed on the issue.)

SDS

Juneteenth

June 19th, celebrated as a commemoration of the end of chattel slavery in the United States, is not the date of the Emancipation Proclamation, issued by Lincoln on January 1, 1863, but the date that it was read aloud in Texas more than two years later accompanied by an announcement of the end of the Civil War.   The Thirteenth Amendment would be adopted by the Reconstruction Congress later that year, in December  1865.

Jim Chen, now Dean at University of Louisville Brandeis School of Law, in his article Mayteenth, 89 Minn. L. Rev. 203 (2004), available on ssrn, explained the significance of June 19, 1865:

On that day, a Union regiment led by Major General Gordon Granger landed at Galveston, Texas. The Granger regiment not only reported the two-month-old news that the Civil War had ended with Robert E. Lee's surrender at Appomattox Courthouse on April 9, 1865, but also enforced (nearly two and a half years after the fact) the Emancipation Proclamation of January 1, 1863. . . . Juneteenth is, as it were, Martin Luther King, Jr.'s birthday without the tragedy.

As an epochal event, Juneteenth managed rather remarkably to arrive both too late and too early. The two-month delay in reporting the news of the Confederacy's defeat and the two-year delay in the enforcement of the Emancipation Proclamation would prove to be trivial in comparison with the glacial pace of legal reform after the Civil War. The nominal end of slavery foreshadowed the bitter disappointment of Reconstruction and the strange career of Jim Crow. A full lifetime after the end of Reconstruction, William Faulkner described all too perfectly the grip of slavery's dead hand: “The past is never dead. It's not even past.”  Most of the slaves emancipated in 1865 never enjoyed some of the simplest and most essential civil rights. Meaningful protection of the right to vote without regard to race or color, to name merely one example, would wait more than a century. Exactly 100 years and 48 days elapsed between Juneteenth and the passage of the Voting Rights Act of 1965.

To celebrate Juneteenth, in other words, is to acknowledge unfinished business. Neither Union victory in the Civil War nor Reconstruction came close to discharging America's debt to its black citizens. Indeed, Reconstruction effectively enabled the South to win the Civil War.  Yet Juneteenth remains worth remembering and celebrating. Rail as we might (and should) against the persistence of racism in America, the preservation of the Union and the abolition of slavery define much of what is good and heroic in American history. To borrow a key word from the civil rights jurisprudence of Chief Justice Earl Warren, a negotiated peace with the Confederacy would have been “unthinkable.” At a certain level of abstraction, quibbling over the precise terms of either victory seems downright ungrateful.

Juneteenth acknowledges a fundamental truth: no matter how long it is delayed, and no matter how imperfectly it is implemented, emancipation beats the pants off enslavement. What separates Juneteenth from other commemorations of wartime victory is its sense of irony and its humility. Because of these traits, and not in spite of them, Juneteenth's celebrants understand the crucial point. However awkwardly accomplished, the outlawing of slavery is a monumental achievement worth commemorating as long as the Republic endures.

 

In his article Apology Lite: Truths, Doubts, and Reconciliations in the Senate's Guarded Apology for Slavery, 42 Connecticut Law Review CONNtemplations 1 (2009), available on ssrn, LawProf Kaimipono David Wegner argues that the United States Senate should "formally commemorate Juneteenth" to help show the sincerity of its apology for slavery and further restorative justice goals including reparations.

Among those campaigning for Juneteenth as a national holiday is US Congressperson from Texas Sheila Jackson (pictured above in 2003 via).

RR

 

WJP Rule of Law Index 2011

The World Justice Project recently released its Rule of Law Index 2011, a report measuring adherence to the rule of law in 66 countries.  We posted on the 2010 report here.

 

In addition to its expanded coverage--up from 35 countries in the 2010 Index--the 2011 Index includes some methodological changes and new data on transition of power, civil conflict, freedom of assembly and association, due process in administrative proceedings, and criminal recidivism.  The four "universal principles," however, remain (predictably) unchanged from the 2010 Index:

• The government and its officials and agents are accountable under the law.
• The laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property.
• The process by which the laws are enacted, administered and enforced is accessible, fair, and efficient.
• Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

Here's the Index's summary on the United States:

The United States obtains high marks in most dimensions of the rule of law.  The country stands out for its well-functioning system of checks and balances and for its good results in guaranteeing civil liberties among its people including the rights of association, opinion and expression, religion, and petition.  The civil justice system is independent and free of undue influence, but it remains inaccessible to disadvantaged groups (ranking 21st).  Legal assistance is expensive or unavailable (ranking 52nd), and the gap between rich and poor individuals in terms of both actual use of and satisfaction with the civil court system remains significant.  In addition, there is a general perception that ethnic minorities and foreigners receive unequal treatment from the police and the courts.

SDS

 

Justice Thomas' Ethics

A NYT report highlights Justice Thomas' ethical stance regarding the Pin Point, Georgia museum.

As we previously discussed, Supreme Court Justices are not bound by the usual code of conduct for federal judges, although Congress presumably has power to declare otherwise.

And perhaps Congress should act.

In addition to the problems with the Pin Point Museum funded by a private donor which discusses Justice Thomas while not exactly honoring him, and the various reports regarding Thomas' wife, the NYT reports this:

Justice Thomas’s gift acceptances drew attention in 2004, when The Los Angeles Times reported that he had accumulated gifts totaling $42,200 in the previous six years — far more than any of the other justices.  Since 2004, Justice Thomas has never reported another gift. He has continued to disclose travel costs paid by schools and organizations he has visited for speeches and teaching, but he has not reported that any travel was provided by Mr. Crow [the funder of the Pin Point musuem].

Travel records for Mr. Crow’s planes and yacht, however, suggest that Justice Thomas may have used them in recent years.

The NYT article is worth reading in full.

RR
(h/t Atiba Ellis).

 

A More Constitutional Military

ConLawProf Diane Mazur's recent book published by Oxford University Press, A More Perfect Military: How the Constitution Can Make Our Military Stronger argues that the military has become unmoored from constitutional constraints.   The Court, she argues, has not only engaged in military deference, but in military exceptionalism.

In an interview about the book, Mazur states "the military is most healthy when it respects constitutional values.  Unfortunately, since the end of the Vietnam draft, our civilian branches of government–the President, Congress, and the courts–have been trying to distance the military from the Constitution.  They assume that constitutional values get in the way of military effectiveness, but that’s not true."

Much of her book concerns the constitutional concerns of equality: how should the military deal with sexual minorities and with women within its ranks?   She provides concrete examples, but argues that the Court - - - in cases such as the unanimous opinion in  Rumsfeld v. FAIR (the Solomon Amendment case) - - - has impeded the military from diversifying.

RR

More on Justices' Interviews

NPR's Morning Edition aired a story this week on Bryan Garner's recently posted interviews with U.S. Supreme Court Justices on legal writing and oral advocacy.

 
 

If you haven't yet read the transcripts or heard the interviews, check out Nina Totenberg's piece first.

SDS