Constitutional Law Prof Blog

Judge Orders Nixon Grand Jury Testimony Unsealed

Chief Judge Royce C. Lamberth (D.D.C.) on Friday granted a petition to unseal President Richard M. Nixon's grand jury testimony from June 23 and 24, 1975, and associated materials of the Watergate Special Prosecution Force.  The documents are currently held under seal by the National Archives and Records Administration.

 
[Security Guard's Log, Watergate Office Building, 1:47 a.m. (lower left) guard called the police, who arrested five burglars in the DNC Headquarters.  Image: NARA]

Judge Lamberth's order comes just months after the Nixon Presidential Library and Museum opened its new and permanent exhibit on Watergate this spring.

 
[Image: NARA]

Judge Lamberth denied a petition in a related case on Friday to release more sealed Watergate documents, including trial documents and congressional testimony.

SDS

Debt Ceiling and the Fourteenth Amendment Redux and Round-Up

There has been a flurry of discussion about the "debt ceiling" and the Fourteenth Amendment since we posted about it last month here.  Essentially, the arguments revolve around whether President Obama has constitutional power to raise the debt ceiling, without Congressional approval, under the Constitution.

The provision at issue is the usually neglected section 4 of the Fourteenth Amendment:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

 The United States Supreme Court interpreted this provision in 1935 in one of the so-called "Gold Bond Cases," Perry v. United States, 294 U.S. 330 (1935). At issue was a Joint Resolution by Congress that arguably changed the terms of gold bonds: provisions requiring "payment in gold or a particular kind of coin or currency" were "against public policy," and provided that "every obligation, heretofore or hereafter incurred, whether or not any such provision is contained therein," shall be discharged "upon payment, dollar for dollar, in any coin or currency which at the time of payment is legal tender for public and private debts."

The Court declared the Joint Resolution unconstitutional, based on the Fourteenth Amendment:

The Fourteenth Amendment, in its fourth section, explicitly declares: "The validity of the public debt of the United States, authorized by law, . . . shall not be questioned." While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the Amendment was adopted. Nor can we perceive any reason for not considering the expression "the validity of the public debt" as embracing whatever concerns the integrity of the public obligations.

We conclude that the Joint Resolution of June 5, 1933, insofar as it attempted to override the obligation created by the bond in suit, went beyond the congressional power.

However, the bond holder did not necessarily prevail, given other acts by Congress - - - and FDR - - - regarding the "adjustment of the internal economy to the single measure of value as established by the legislation of the Congress," so that "the payment to the plaintiff of the amount which he demands would appear to constitute not a recoupment of loss in any proper sense, but an unjustified enrichment."

As for the present situation involving Obama's options under the Fourteenth Amendment, ConLawProfs articulate various views. 

In addition to Garrett Epps original discussion a few months ago, earlier this month Larry Tribe argued that the debt ceiling statute was constitutional and Obama had little power.  In the past few days, several others have weighed in.

Ronald Dworkin, writing in the New York Review of Books, notes that the 

“debt shall not be questioned” clause was added to the Fourteenth Amendment for a specific and immediate purpose: to prevent the new Southern members of Congress, should they gain a majority, from cancelling the debt the Union had incurred in the war. But constitutional interpretation is not a catalogue of historical anecdotes; it is a matter of principle and we are therefore required to identify the principle on which the authors of the clause had to rely.

Dworkin quotes the 1935 precedent (obviously referring to Perry, although it was not a unanimous opinion, as he states, for whatever that is worth), and concludes "I believe the best, principled, interpretation of the clause gives the president authority to ignore that blackmail and to borrow enough to meet the nation’s standing legal obligations."   Whether or not this would be "politically wise" is another question, as Dworkin discusses.

Jeffrey Rosen attempts to predict the outcome of a challenge to a possible Obama debt ceiling raise and a possible case before the present Supreme Court Justices.  Rosen notes that the Court might not hear the case.

Indeed, Darren Hutchinson writes that precedent weighs heavily against lawmakers (or presumably any one else) have standing to challenge Obama's possible act.

Be that as it may, Rosen predicts that the Court would rule for Obama by a "lopsided margin," assuming the Justices were "true" to their constitutional philosophies, although "the conservative justices would be torn between their dislike of Obama and their commitment to expanding executive power at all costs."

Erwin Cherminsky takes a different view in an op-ed in the LA Times. 

Article I, Section 8 of the Constitution says that it is Congress that has the power "to borrow money on the credit of the United States." The Constitution thus could not be clearer that borrowing money requires congressional action. Nothing in Section 4 of the 14th Amendment takes this power away from Congress or assigns it to the president.

 

Of course, politics are inextricably interwoven in all of these opinions, just as they were in 1935 when the Depression-era Court was considering government regulation of gold.  Hutchinson recommends that once "the debt ceiling drama has subsided, the nation needs to engage in a very meaningful (i.e., not theatrical and immature) discussion of its priorities."  

RR
[image: Obama and the Oval Office ceiling via]

Fourth Circuit Holds Legislative Prayer Violates Establishment Clause

The Forsyth County Board of Commissioners, an elected body that governs Forsyth County, North Carolina, begins each of its meetings with a prayer and the pledge of allegiance. 

The practice in this situation, according to an opinion from the Fourth Circuit, violated the Establishment Clause of the First Amendment.  Affirming the district judge, who adopted a magistrate's findings, while the Board took "a hands-off approach to the actual content of the prayers," using clergy from a list, the actual prayers delivered frequently contained references to Jesus Christ, such as "We pray this all in the name under whom is all authority, the Lord Jesus Christ."  After some initial dispute, the Board attempted to clarify its policy, but still, almost four-fifths of the prayers referred to "Jesus," "Jesus Christ," "Christ," or "Savior," closing the prayer by mentioning Jesus.  According to the Fourth Circuit panel, "None of the prayers mentioned non-Christian deities."

The panel stated, "At its core, this is not a case about the Establishment Clause in general, but about legislative prayer in particular. This distinction is critical, for legislative prayer lies at the heart of two intersecting realities." 

The first reality is that legislative prayer "is deeply embedded in the history and tradition of this country," and as such, has been upheld by the United States Supreme Court in  Marsh v. Chambers, 463 U.S. 783, 786 (1983).

The second reality is that legislative prayer risks offending the Establishment Clause precept that the government may not prefer one particular sect or creed over another.  Legislative prayer should be welcoming and inclusive and as nonsectarian as possible.

The frequent and repeated references to Christ, as well as to specific tenets of Christianity, including discussions of "Calvary," placed these practices over the line of what is permissible under the Establishment Clause.  While the Board's stated policy was permissible and neutral, the manner in which it was implemented was a different matter.  Importantly, as the panel noted, "citizens attending Board meetings hear the prayers, not the policy."

Circuit Judge Niemeyer wrote a lengthy and vigorous dissent, arguing that the majority reduces prayer to a "civil nicety," an accusation which the majority discussed in its opinion.  The dissenting judge found fault with the majority's attempt to "legislate" a "government censorship of religious expression" "based on the imprecise notion of nonsectarianism, bowing to political correctness or universal inoffensiveness.

While there is some dispute regarding the facts between the majority and the dissent - - - just how focused on Jesus were the prayers that were delivered? - - -precedent seems strongly weighted in favor of the majority's conclusion.

RR
[image: from La Saeta, Julio Romero de Torres, 1918, via]

Thomas More Appeals Sixth Circuit Health Care Loss to Supreme Court

The Thomas More Law Center this week asked the Supreme Court to review the Sixth Circuit's ruling last month upholding the individual health insurance mandate in the Affordable Care Act against its constitutional challenge.

The Sixth Circuit ruled last month in Thomas More Law Center v. Obama that the individual health insurance mandate in the Affordable Care Act was within Congress's Commerce Clause authority and not otherwise prohibited by the Constitution.

Thomas More Law Center's petition for writ of certiorari raises familiar arguments, including this: Congress can only regulate "commerce"; "commerce" means action (not inaction); and therefore the individual mandate, which regulates inaction, exceeds Congress's Commerce Clause authority.

Two points in the petition are worth note:

• Thomas More Law Center takes direct aim at both Wickard v. Filburn and Gonzales v. Raich, arguing that they are "vexatious"--i.e., out of step with U.S. v. Lopez and U.S. v. Morrison (presumably the Court's real jurisprudence on the Commerce Clause).  It then backs off, though, arguing that Gonzales v. Raich makes sense of the "vexatious" duo by clarifying for us that "commerce" means "activity."  (The rest of the argument then follows.)  It looks like Thomas More Law Center is trying to put Wickard v. Filburn and Gonzales v. Raich in play.
• Thomas More Law Center includes a footnote with a lengthy quote from the Court's recent ruling in Bond v. U.S., the OT 10 case in which the Court ruled that an individual has standing to raise a Tenth Amendment defense.  The quote focuses on the connection between federalism and freedom.

The gist of the petition, however, and the core reason for granting cert. can be reduced to this one liner, from Paragraph 1 of the petition:

Review is necessary to establish a meaningful limitation on congressional power under the Commerce Clause.  . . .

SDS

Schoolhouse Gates, My Space and First Amendment in the Fourth Circuit

May a school discipline a student for internet "bullying"?  The Fourth Circuit has answered this increasingly common question with a resounding "yes" in its opinion in Kowalski v. Berkeley County Schools.

Kowalski, a senior in a West Virginia public high school, created a MySpace page entitled "S.A.S.H."  Although perhaps not immediately obvious to the uninitiated, this stood for "Students Against Sluts Herpes." The site was dedicated to ridiculing a fellow student.  The school suspended her for five days.

The Fourth Circuit had little difficulty rejecting Kowalski's First Amendment claim, despite the fact that she created the material outside of school.  Applying Tinker v. Des Moines Indep. Community Sch.
Dist., 393 U.S. 503 (1969),  the panel reasoned:

because the School District was authorized by Tinker to discipline Kowalski, regardless of where her speech originated, because the speech was materially and substantially disruptive in that it "interfer[ed] . . . with the schools’ work [and] colli[ded] with the rights of other students to be secure and to be let alone." See Tinker, 393 U.S. at 508, 513. Given the targeted, defamatory nature of Kowalski’s speech, aimed at a fellow classmate, it created "actual or nascent" substantial disorder and disruption in the school. See Tinker, 393 U.S. at 508, 513.

The panel found that "every aspect of the webpage’s design and implementation was school-related."  It recited facts including Kowalski's design of the website for "students," sending it to students inviting them to join; and encouraging commentary.  Moreover, the panel noted that the "victim understood the attack as school-related, filing her complaint with school authorities."  Additionally, another student "participated from a schoolcomputer during class, to the cheering of Kowalski and her fellow classmates, whom she invited to the affair."

The Fourth Circuit twice noted the recent Third Circuit en banc opinions also involving MySpace pages constructed off campus, but the mentions were exceedingly brief and the analysis confined to paretheticals.   The Fourth Circuit did not distinguish the Third Circuit cases as having targets of school personnel rather than students, which might also be an important distinction for future courts.

Kowalski also raised a due process claim which the Fourth Circuit rejected: "Kowalski’s argument that school administrators did not follow their own policies was not demonstrated in the record and also has no legal merit. Violations of state laws or school procedures "are insufficient by themselves to implicate the interests that trigger a [federal] due process claim.""

At the end of its opinion, the panel had harsh and somewhat paternalistic words for Kowalski (and presumably her parents), as well as sympathy for school administrators attempting to combat bullying:

Rather than respond constructively to the school’s efforts to bring order and provide a lesson following the incident, Kowalski has rejected those efforts and sued school authorities for damages and other relief. Regretfully, she yet fails to see that such harassment and bullying is inappropriate and hurtful and that it must be taken seriously by school administrators in order to preserve an appropriate pedagogical environment. Indeed, school administrators are becoming increasingly alarmed by the phenomenon, and the events in this case are but one example of such bullying and school administrators’ efforts to contain it. Suffice it to hold here that, where such speech has a sufficient nexus with the school, the Constitution is not written to hinder school administrators’ good faith efforts to address the problem.

RR

Federal Judge Declares Florida Drug Statute Lacking Intent Requirement Unconstitutional

In Criminal Law courses throughout the common law world, students learn that a criminal law offense generally requires an actus reus and a mens rea, an act and an intent.  In 2002, however, the Florida legislature amended its Drug Abuse Prevention and Control Law, Fla. Stat. §893.101, to seriously curtail the mens rea requirement for drug crimes.

In her opinion and order granting a petition for habeas corpus in Shelton v. Secretary Department of Corrections, Florida District Court Judge for the Middle District of Florida, Judge Mary S Scriven, declared  Fla. Stat. § 893.13, as amended by Fla. Stat. § 893.101, unconstitutional.

Judge Scriven found that although a government may fashion some criminal laws that do not have a mens rea requirement, this ability is limited by the constitutional contraints of the due process clause. The judge credited the amicus brief filed by Amici Curiae that included 38 law professors (and listed the signatories in footnote 7) that elimination of mens rea is "atavistic and repugnant to the common law."  

{Update by request: Amicus Brief here, via}

The judge applied the tripartite analysis for evaluating strict liability crimes by considering the penalty imposed; the stigma associated with conviction; and the type of conduct purportedly regulated.  On the first prong, the judge found that sentences of fifteen years, thirty years, and life imprisonment under the Florida Statute are too severe to pass constitutional muster.  On the second prong, the judge concluded that a felony conviction certainly carries a stigma, especially given felony disenfranchisement, exclusion from juries, gun licenses, and student loan assistance.  Regarding the last prong considering the type of conduct regulated, the judge noted that without knowledge of the substance one possessed, one could be engaging in behavior that would be innocuous. 

This last point is the most difficult to grasp.  Judge Scriven provided this analysis:

          the State argues that FLA. STAT. § 893.13 does not regulate innocuous conduct since “the possession of cocaine is never legal,” and the imposition of harsh penalties without proof of mens rea is simply a risk drug dealers undertake for selling or delivering cocaine. (Id. at 18) By this assertion, the State confirms Professor Sanford H. Kadish’s hypothesis that the basis for strict liability crimes is often simply a backhanded retort - - “tough luck” to those who engage in criminal activity. Sanford H. Kadish, Excusing Crime, 75 Cal. L. Rev. 257, 267-68 (1987).

But, in this suggestion, the State ignores that Florida’s statute is not a “drug dealer beware” statute but a “citizen beware statute.” Consider the student in whose book bag a classmate hastily stashes his drugs to avoid imminent detection. The bag is then given to another for safekeeping. Caught in the act, the hapless victim is guilty based upon the only two elements of the statute: delivery (actual, constructive, or attempted) and the illicit nature of the substance. See FLA. STAT. §§ 893.02(6), 893.13(1)(a). The victim would be faced with the Hobson’s choice of pleading guilty or going to trial where he is presumed guilty because he is in fact guilty of the two elements. He must then prove his innocence for lack of knowledge against the permissive presumption the statute imposes that he does in fact have guilty knowledge.

The judge noted that the Florida Statute is unique amongst all the drug laws in the United States.  Now, it has been declared unconstitutional.

RR
[image via]

On Raisins and Takings: Ninth Circuit Upholds USDA

The raisins so prominent in morning cereal and children's snacks are "heavily regulated" agricultural commodities under marketing orders promulgated by the USDA (United States Department of Agriculture) under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq.   

In its opinion in Horne v. USDA, the Ninth Circuit upheld the imposition of civil assessments under the regulations and upheld the constitutionality of the regulatory scheme.   The central requirement at issue mandates that a certain percentage of a raisins be put in "reserve" each year - - - this fluctuates yearly and by controlling raisins on the market is a means of indirectly controlling prices.

The Hornes' administrative and statutory claim was that they had reorganized their raisin business and were no longer subject to the regulations because they were no longer "handlers" but only "producers."

Their major constitutional claim was that even if subject to the regulations, "the requirement that they contribute a specified percentage of their annual raisin crop to the government-controlled reserve pool constitutes an uncompensated per se taking in violation of the Fifth Amendment."  They also claimed that the penalities imposed for their “self-help” noncompliance (caused by their reorganization in an attempt to escape from the regulations) violated the Eighth Amendment's Excessive Fines Clause.

The Ninth Circuit panel opinion has an excellent rehearsal of regulatory takings doctrine, which clearly does not support the Hornes' claim.  However, as the opinion notes,the Hornes claim that the Ransin Marketing Order is a physical taking because there is an annual “direct appropriation” of their reserve-tonnage raisins.  The panel rejected this construction: "Though the simplicity of their logic has some understandable appeal—their raisins are personal property, personal property is protected by the Fifth Amendment, and each year the RAC “takes” some of their raisins, at least in the colloquial sense—their argument rests on a fundamental misunderstanding of the nature of property rights and instead clings to a phrase divorced from context."

Instead, as the panel reasoned,

the Raisin Marketing Order applies to the Hornes only insofar as they voluntarily choose to send their raisins into the stream of interstate commerce. Simply put, it is a use restriction, not a direct appropriation. The Secretary of Agriculture did not authorize a forced seizure of forty-seven percent of the Hornes’ 2002-03 crops and thirty percent of their 2003-04 crops, but rather imposed a condition on the Hornes’ use of their crops by regulating their sale.

The panel then cited a Ninth Circuit opinion from 1938 - - - Wallace v. Hudson-Duncan & Co., 98 F.2d 985 - - - rejecting a takings challenge to a reserve requirement under the walnut marketing order.  The panel therefore joined the Court of Federal Claims, which not long ago decided the same question under the Raisin Marketing Order, Evans v. United States, 74 Fed. Cl. 554 (2006), aff’d, 250 Fed. Appx. 321 (Fed. Cir. 2007); in accord with a smiliar case rejecting a challenge to the reserve program under the almond marketing order, Cal-Almond, Inc. v. United States, 30 Fed. Cl. 244 (1994).

On the Eighth Amendment claim, the panel applied the test from United States v. Bajakajian, 524 U.S. 321(1998), considering whether the assessment is imposed, at least in part, for punitive and not merely remedial purposes, and whether the fine is grossly disproportional to the gravity of the offense for which it is imposed.  Affirming the district judge, the panel found the fine was remedial and the infractions serious.  It also noted that the fines were not as "steep" as those authorized by the statute.

The panel's conclusion notes the Hornes' frustration with the raisin regulatory scheme, but observes that the judicial role "is limited to reviewing the constitutionality and not the wisdom of the current regulation."  The Hornes' remedy, the opinion suggests, is with the Secretary of Agriculture.

RR

 

The Future of the Voting Rights Act

Dr. Greg Rabidoux asked yesterday on the American Constitution Society blog, Will the Roberts Court Kill the Voting rights Act?

Rabidoux argues that the VRA, especially Section 5, the "preclearance" requirement, might be on its last leg, based on Chief Justice Roberts's opinion in Northwest Austin Municipal Utility District v. Holder.  The Court in that case dodged the constitutional question--whether Congress had authority to reauthorize the preclearance requirement of the VRA--by holding that the District (or the "MUD") was eligible for bailout from the preclearance requirement.  Chief Justice Roberts wrote for eight members of the Court (all but Justice Thomas, who would have ruled Section 5 unconstitutional) and said that the VRA has some "serious constitutional concerns," but went no farther in exploring the constitutional question.

Rabidoux correctly predicts that two cases now working their way through the courts may give the Supreme Court an opportunity to take on the constitutional question--and to rule the preclearance requirement outside the bounds of congressional authority.  Those cases are Shelby County v. Holder (now in the district court for D.C.) and LaRoque v. Holder (now in the D.C. Circuit).

SDS

DOMA in New York: NY Attorney General Files Brief in Windsor v US

Last November, Edith Windsor filed a complaint in the Southern District of New York as the survivor of a same-sex couple married in Canada.  Windor seeks a refund of estate taxes paid because the marriage was not recognized by the federal government and argues that the Defense of Marriage Act, DOMA, section 3 is an unconstitutional denial of equal protection.

Today, the Attorney General of New York filed an amicus brief supporting Windsor.  With same-sex marriage now legal in New York (although a challenge was filed yesterday), the state has a substantial interest in the effect of DOMA.  The state joins Windor's equal protection arguments, but also raises a Tenth Amendment argument:

Although plaintiff has not raised a Tenth Amendment claim in her complaint, principles of federalism should inform this Court’s review of her equal-protection claim as well. Federalism protects not merely the interests of state governments, but also individual liberty: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Bond v. United States, 131 S. Ct. 2355, 2364 (2011). The power of Congress is at its lowest when it seeks to discourage States from enacting statutes, like the Marriage Equality Act, that are at the core of the States’ sovereignty. In analyzing the validity of the Gun-Free School Zones Act under the Commerce Clause, Justice Kennedy instructed that “[A]t the least we must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern.” United States v. Lopez, 514 U.S. 549, 580 (1995) (Kennedy, J., concurring). So too here, the analysis of the statute must take into account that it intrudes on an area of traditional state concern.

The brief then cites the Massachusetts DOMA distict court opinion, Massachusetts v. US, presently on appeal.

While the Obama Administration is not defending DOMA - - - itself having decided DOMA is unconstitutional - - - it is noteworthy that at this point, New York is only filing an amicus brief and not filing a complaint of its own unlike Massachusetts.

The New York Attorney General's brief is disconcerting in one respect.  It argues,

Because New York has consistently expressed and implemented its commitment to equal treatment for same-sex couples, New York has a strong interest in ensuring that the “protections, responsibilities, rights, obligations, and benefits,” ch. 95, § 2, 2011 N.Y. Laws at __, accorded to them under federal law by virtue of marriage are equal to those accorded to different-sex married couples.

Yet some might argue that New York's "commitment" to equality for same-sex couples has been less than total.  The state's highest court, the New York Court of Appeals, reversed lower courts and rejected a claim that limiting marriage to opposite sex couples was unconstitutional in Hernandez v. Robles in 2006.  Hernandez v. Robles applied rational basis scrutiny and in much criticized passage reasoned that the legislature could "rationally decide that, for the welfare of children, it is more important to promote stability" and that because heterosexual relationships lead to children and that because "such relationships are all too often casual or temporary," the legislature "could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born" and it could thus " choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other."  The court reasoned that this inducement rationale "does not apply with comparable force to same-sex couples" who can become "parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse." Thus,

The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

Perhaps it is understandable why the New York Attorney General would not want to mention Hernandez v. Robles - - - the brief does not cite it - - - but it does belie New York's "consistent" support for same-sex marriage.

RR

Ninth Circuit Limits Iqbal's Impact in Prisoner Abuse Case

A split panel (2-1) of the Ninth Circuit ruled today that a prisoner's civil rights claim against a sheriff for deliberate indifference to prison conditions that led to his assault can move forward beyond the pleadings.  In so ruling, the court declined to extend the holding in Ashcroft v. Iqbal--that civil rights suits do not allow for the imposition of vicarious liability--to Eighth and Fourteenth Amendment claims.

The case, Starr v. Baca, arose out of a prison assault.  Plaintiff Starr alleged that prison guards opened his cell and allowed other prisoners to enter; the other prisoners then stabbed the plaintiff repeatedly; the guards refused to intervene.  Starr sued the sheriff, alleging that he violated his Eighth and Fourteenth Amendment rights by acting with "deliberate indifference" to the conditions that led to the assault.  (Starr also sued the guards; that claim wasn't before the court.)

The sheriff argued that the Supreme Court eliminated all claims for supervisory liability, including deliberate indifference claims, in Iqbal.  He also claimed that Starr failed to plead sufficient facts to satisfy either the pre-Iqbal or post-Iqbal standard for Rule 8.

The court disagreed.  It wrote that Iqbal involved a claim of unconstitutional discrimination, and that finding the defendants, AG Ashcroft and FBI Director Mueller, liability without showing a discriminatory purpose would have been "equivalent to finding them vicariously liable for their subordinates' violation, which Bivens and Sec. 1983 do not allow."  But this case involved the "deliberate indifference" standard under the Eighth Amendment, not discrimination.  The majority wrote,

A claim of unconstitutional conditions of confinement, unlike a claim of unconstitutional discrimination, may be based on a theory of deliberate indifference.  A showing that a supervisor acted, or failed to act, in a manner that was deliberately indifferent to an inmate's Eighth Amendment rights is sufficient to demonstrate the involvement--and the liability--of that supervisor.  Thus, when a supervisor is found liable based on deliberate indifference, the supervisor is being held liable for his or her own culpable action or inaction, not held vicariously liable for the culpable action or inaction of his or her subordinates.

Op. at 8.

The court went on to rule that Starr's complaint satisfied the Iqbal pleading standard, with a detailed analysis why.  (Judge Trott disagreed.)  The majority used the opportunity to vent its frustration about the Court's recent rulings on the Rule 8 pleading standard:

The juxtaposition of [Swierkiewicz v. Sorema] and [Erickson v. Pardus], on the one hand, and [Dura Pharmaceuticals, Inc. v. Broudo], [Bell Atlantic Corp. v. Twombly] and Iqbal, on the other, is perplexing.  Even though the Court stated in all five cases that it was applying Rule 8(a), it is hard to avoid the conclusion that, in fact, the Court applied a higher pleading standard in Dura, Twombly and Iqbal.

Op. at 24.

This is almost certainly not the end of this case.  It's a good case to test Iqbal's reach on vicarious liability and pleading standards.  Look for it to go to an en banc Ninth Circuit and maybe even to the Supreme Court.

SDS

State Constitutional Law Challenge to New York's Same-Sex Marriage Statute

New York's same-sex marriage statute, passed June 24, 2011, became effective Sunday, July 24, amidst a great deal of marrying covered in many press venues, including from the NYT covering events throughout NY, at the traditional honeymoon site of Niagra Falls, the state capitol Albany, and New York City, not to mention a special style section.

There has been some controversy regarding the religious exemptions in the statute, including the role of town clerks, but now there is a broader challenge to the statute.

The statute was challenged in a complaint (h/t Capitol Confidential) filed today by a group called New Yorkers for Constitutional Freedoms, which describes its mission on its website thusly: "As a Christian ministry, NYCF exists to influence legislation and legislators for the Lord Jesus Christ." (emphasis in original).

The complaint alleges:

In Seeking declaratory and injunctive relief, the Plaintiffs in this case seek to preserve not only marriage as the union of one woman to one man, but also our constitutional liberties by acting as a check on an out-of-control political process that was willing to pass a bill regardless of how many laws and rules it violated.

According to the complaint, the violations included:

• Meetings that violated New York State Open Meetings Laws;
• The suspension of normal Senate voting procedures to prevent Senators who opposed the bill from speaking;
• Failure to follow Senate procedures that require that a bill must be sent to appropriate committees prior to being placed before the full Senate for a vote;
• Unprecedented Senate lock-outs by which lobbyists and the public were denied access to elected representatives;
• The Governor’s violation of the constitutionally mandated three-day review period before the Legislature votes on a bill by unjustifiably issuing a message of necessity;
• Promises (which were fulfilled) by high-profile elected officials and Wall Street financiers to make large campaign contributions to Republican senators who switched their vote from opposing to supporting the Marriage Equality Act;
• A private dinner between the Republican Senators and Governor Cuomo at the Governor’s mansion, with the public and press excluded, aimed at convincing Republican Senators to vote in favor of the bill.

Once notorious as having a legislative process known as  "three men in a room"  - - - discussed in a 2006 book with that name - - - many observers believe the process has actually improved.  However, the state constitution, as the complaint points out, requires "the doors of each house [of the legislature] shall be kept open, except when the public welfare shall require secrecy." NY Const. Article III, section 10.  The Senate "lock-out" of "lobbyists" in its "lobby" is argued as violating this provision.

Jimmy Vielkind, reporting for Capitol Confidential, of the Albany Times-Union, provides some reactions to the lawsuit.  Vielkind also reports that the NY State Open Meeting law claim has a very small chance of success: "Fun fact: the state legislature has a specific, blanket, exemption from the Open Meetings Law that was enacted into law in 1985, according to Bob Freeman, executive director of the Committee on Open Government at the Department of State."   Indeed, the statute's legislative exemption is exceedingly broad.

RR
[image: Bride Embellished by Her Girlfriend, by Henrik Olrik, circa 1859, via]

Revisiting Flores-Villar: Collins and Kerber

As we contemplate the Court's last term, one of the more cryptic cases is Flores-Villar.  The Court's per curiam decision is one of those unsatisfying conclusions: "The judgment is affirmed by an equally divided Court. JUSTICE KAGAN took no part in the consideration or decision of this case."

The Ninth Circuit opinion had upheld the federal statutory scheme which requires a citizen father to have resided in the United States for at least five years after his fourteenth birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship. In the case of Flores-Villar, INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth and it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.

In a recent speech, Justice Ginsburg alluded to Flores-Villar as one "only two of the 78 argued cases" last term that "ended in an even division" possible because of Kagan's recusal. (The other case, also resulting an affirmance of the Ninth Circuit, was Costco v. Omega, involving a copyright issue).

Kristin Collins and  Linda K. Kerber (pictured right and the author of the wonderful book, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship), have an interesting discussion of Flores-Villar in Dissent Magazine.

Collins and Kerber observe:

In our own political moment, these words—citizenship, naturalization, alien—are highly charged and often misused. That they were so slippery in the Court’s deliberations in Flores-Villar may be a sign of how slippery they have become in public conversation. No one in the courtroom that day could have been unaware that the birthright citizenship clause of the Fourteenth Amendment—one of the key bulwarks of American liberty, enacted following the Civil War to make sure that southern states recognized African Americans as citizens—is being energetically attacked in legislatures throughout the nation. The attack is linked to suspicion of undocumented migrants, stereotypically visualized as pregnant women entering from Mexico to take advantage of the fact that their “anchor babies” would be citizens. In Flores-Villar, another gender-based stereotype survived: the unmarried father who plays no role in his child’s upbringing. But, in reality, neither of these stereotypical parents was present. Instead, we had an American father who brought his newborn son home to the United States to raise him there. The important differences between stereotypes and real people, and between immigration and citizenship, seem to have blurred for half of the Court.

They also predict that Flores-Villar is not the last the Court will see of this issue:

Three times in thirteen years the Supreme Court has heard arguments on the question of whether mothers and fathers may be treated differently in determining whether their children are American citizens. Given the equivocal result in Flores-Villar and the importance of what is at stake, there will no doubt be a fourth time. We must now wait patiently to see what a full Court—one on which Justice Kagan need not recuse herself—might do.

RR

Second Circuit Finds Garcetti Does Not Bar First Amendment Claim of Police Officer

Overcoming Garcetti v. Ceballos has become a challenge for any public employee seeking to assert her or his First Amendment rights.  A school teacher's assignment may be grounds for her termination, as the Sixth Circuit held.

But what about a police officer who refuses to change his statement regarding what he witnessed: another police officer striking a handcuffed man?

The Second Circuit, in its opinion in Jackler v. Bryne, decided that Garcetti v. Ceballos does not apply, reversing the district judge.  Thus, Jackler, once a probationary police officer in Middletown, New York, may proceed with his suit claiming his termination was in retaliation for his exercise of his First Amendment rights.

The panel noted that most of the precedent concerns government employees who complained that they were penalized by their employers on account of statements the employees affirmatively made. "Jackler, in contrast, contends that he was penalized for his refusals to follow defendants' instructions that he retract his Report and make statements that would have been untrue, and that his refusals are protected by the First Amendment." 

The court distinguished Garcetti thusly:

Although defendants argue that Jackler's refusals were part of his job and that Garcetti requires affirmance because otherwise any employee who simply files a truthful report could claim that his First Amendment rights were implicated because he did not file a false one, we reject that contention because it ignores the context of Jackler's refusals. Jackler's allegation--which must be accepted as true in the context of judgment on the pleadings--was that Rickard and Freeman, as directed by Chief Byrne, repeatedly attempted to force him to withdraw the truthful report he had filed and to submit one that was false. In the context of the demands that Jackler retract his truthful statements and make statements that were false, we conclude that his refusals to accede to those  demands constituted speech activity that was significantly different from the mere filing of his initial Report.

 This vital distinction is supported by the consequences of Jackler's act:  "retracting a truthful statement to law enforcement officials and substituting one that is false would expose the speaker-- whether he be a police officer or a civilian--to criminal liability."  In other words,  Jackler's non-employee interest was in the truth that would prevent his own perjury.

While the court could certainly have stopped with this analysis, supported by its citations to New York and federal law, the panel at times delved further into the facts, stating that the "use of excessive force by a police officer is a matter of serious public concern."   There was, the court said, "no indication that Jackler had any personal interest" in describing the offending police officer's conduct. 

Of course, as the court did not note, the prosecutor Ceballos did not have any "personal" interest in the truthfulness of the police officer's statements seeking a warrant in Garcetti v. Ceballos.  And perjury by police officers obtaining a warrant is - - - or should be - - - a matter of serious public concern.

RR
[h/t Stephen Bergstein, CUNY Law alum and attorney for Jackler]

D.C. Circuit Holds Former Detainees' Claims Moot

A three-judge panel of the D.C. Circuit ruled on Friday that former Guantanamo detainees' habeas claims are moot.  The ruling means that the former detainees cannot challenge their continued designation as "enemy combatants" and are stuck with that label, and all its baggage, even though the government released them from Guantanamo and returned them to their home countries.

The case, Gul v. Obama, follows a ruling in the Federal District Court for D.C. last year that dismissed over 100 then-pending habeas claims of former Guantanamo detainees.  Fifteen of those former detainees appealed to the D.C. Circuit; this case involves two.  (The D.C. Circuit consolidated the two and held the other thirteen in abeyance pending this ruling.)

When the government released the detainees, it notified them that they were "approved to leave Guantanamo," but that this approval "does not equate to a determination that [they were not enemy combatants], nor is it a determination that [they do] not pose a threat to the United States."

The detainees claimed that their designation as "enemy combatants" means that their home countries imposed travel restrictions upon them, that they are prohibited from entering the U.S., that they are subject to the recapture and even killing under the laws of war, and that their reputations have been damaged.

The court said that these "collateral consequences" didn't satisfy justiciability requirements under Article III.  It wrote that its ruling could not force a non-party, here a foreign government, to relax travel restrictions upon them.  It ruled that the appellants didn't even say they'd like to visit the U.S., and that any court order forcing the government to allow them to visit would run up against the various federal statutes excluding them.  It held that the appellants had no basis for believing they'd be targets for recapture or killing under the laws of war.  And it wrote that stigma alone isn't enough to establish their petitions as not moot.

The ruling means that these detainees are stuck with the designation "enemy combatant," even after the U.S. government released them from Guantanamo.  As they alleged, the designation is a significant burden and puts them at continued risk of recapture or even targeted killing.  The ruling applies not just to the two appellants here, but also to the thirteen other former detainees with pending habeas petitions who appealed last year's district court ruling.

This isn't the first time that a court ruled that detention policies overlapped with the law in a way to leave detainees in limbo.  Recall the case of the Uighur detainees--a group that everyone agreed was wrongly detained, but had no place to go other than Guantanamo. 

And the appellants' worry about recapture or killing isn't so far-fetched.  Recall the ordered targeted killing of Anwar al-Aulaqi.

SDS

Sonia Lawrence on Family Inequalities

The second installment of the Jotwell Equality section - - - we previously discussed the launch - - - is by Sonia Lawrence (pictured below) of Osgoode Hall Law School, Canada.

Lawrence profiles Janet Halley & Kerry Rittich, Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism, 58 Am. J. Comp. L. 753 (2010). 

She writes that this short and valuable article is "fundamentally about equality questions," and that the authors argue that family law is about “distributional outcomes.”  The "legally constituted family is closely linked to market distributions, even if those links are often masked."  

Thus, family law is not "exceptional" as we so often say in Constitutional Law, even as we continue to discuss polygamy, same-sex marriage, and other family forms.  Moreover, looking at the issue from a Canadian- US comparative perspective is often much more illuminating than one might think, especially given Canada's robust equality jurisprudence.

Lawrence argues that "scholars need to widen their nets" when addressing equality issues; the rest of her post is here.

RR

Justice Ruth Bader Ginsburg: On the 2010 Term

Justice Ginsburg's talk on the Court, presented at the Otsego County Bar Association of New York,  July 22, 2011, is worth reading. Here is an edited version of the written transcript.  The transcript includes footnotes and citations (omitted below), including to the oral argument statements and cases. 

 The edited version continues after the jump, with Ginsburg discussing constitutional law cases such as Snyder v. Phelps, Arizona Christian School Tuition Organization v. Winn,  Chamber of Commerce v. Whiting, and Arizona Free Enterprise Club v. Bennett. Ginsburg "explains" the fact that three of these cases are from Arizona, and makes her most provocative statement on the Court's term regarding Arizona Free Enterprise Club v. Bennett.  She also mentions the reality of three women Justices on the Court.

 

I will present some comments on the Supreme Court Term just ended, the 2010-2011 Term. Early in the Term, the Justices sat for a new photograph, as they do every Term the Court'scomposition changes. Elena Kagan, former Solicitor General, and before that, Dean of the Harvard Law School, came on board last summer, and has just completed her first year as a member of the Court. She has already shown her talent as an incisive questioner at oral argument and a writer of eminently readable opinions. The junior Justice, in the first few rounds, tends to get opinion writing assignments in cases neither controversial nor of greatest interest. Displaying her good humor and wit, Justice Kagan opened the announcement of one of her opinions for the Court with this line: "If you understand anything I say here, you will likely be a lawyer, and you will have had your morning cup of coffee."

Lawyers and law professors alike pay close attention to the questions Justices pose at oral argument. The 2010-2011 Term was rich in that regard. Questions from the bench ranged from the historical: "[W]hat [did] James Madison th[ink] about video games[?]" to the practical: "[I]sn't ... evidence always .. . destroyed when ... marijuana [once possessed by a suspect] is ... smoked? Isn't it being burnt up?"

Colleagues have been fearful: "Does al-Qaeda know all this stuff?", occasionally philosophical: "[W]hy are you here?" "[W]hy are we all here?", and sometimes openly exasperated: "I know your client doesn't care. But we still have to write [an opinion]. So what['s] the answer?" Queries ran from the natural: "Is the snake covered?" to the unnatural: "[W]here is the 9,OOO-foot cow?" to the supernatural: ''What do you think about Satan?"

Justice Jackson famously commented that the Court is "not final because [it is] infallible, [it is]infallible only because [it is] final." Some musings from the bench last Term bear out that wisdom: "I don't know what I'm talking about," "Is that the best you can find on the other side, ... something I once wrote in a case?" You may not be surprised to learn that I uttered none of the just-recited lines. For, as the New York Times reported, based originally on an empirical study by a former law clerk of mine, when it comes to oral argument,I am-quote-" the least funny Justice who talks." From the foregoing samples, you may better understand why the Court does not plan to permit televising oral arguments any time soon.

Turning to the Term's work, I will report first on our docket. Argued cases numbered 78, the same number as the two preceding Terms. Per curiam opinions in cases decided without full briefing or argument numbered only five, consistent with the 2008-2009 Term, but considerably fewer than last Term. One petition was dismissed post-argument as improvidently granted, and another was remanded before argument in light of a recent development bearing on the question presented. Justice Kagan's recusal in more than one-third of the argued cases generated speculation that the Court would all too often divide 4 to 4; in fact, only two of the 78 argued cases ended in an even division. When that happens, we announce that the judgment we took up for review is affirmed by an equally divided Court. We state no reasons and the disposition does not count as precedent. (A third case last Term was evenly divided only as to threshold jurisdictional issues; and after affirming without opinion the lower court's exercise of jurisdiction, the Court rendered a unanimous decision on the merits of the controversy.)

The Court split 5-4 (or 5-3 with one Justice recused) in 16 of the opinions handed down in argued cases. In comparison to that 20% sharp disagreement record, we agreed, unanimously, on the bottom-line judgment more than twice as often, in 33 (or over 40%) of the decisions. And in more than half of those, 18 of the 33, opinions were unanimous as well.

I will next mention six headline-attracting decisions. Two significant class action cases were among them. The first, AT&T Mobility LLC v. Concepcion,concerned the enforceability of fine-print

 

 

 

Continue reading

Obama on DADT: Repeal

Today, the White House, Office of the Press Secretary, issued the following "Statement by the President on Certification of Repeal of Don't Ask, Don't Tel"

Today, we have taken the final major step toward ending the discriminatory ‘Don’t Ask, Don’t Tell’ law that undermines our military readiness and violates American principles of fairness and equality.  In accordance with the legislation that I signed into law last December, I have certified and notified Congress that the requirements for repeal have been met.  ‘Don’t Ask, Don’t Tell’ will end, once and for all, in 60 days—on September 20, 2011. 

As Commander in Chief, I have always been confident that our dedicated men and women in uniform would transition to a new policy in an orderly manner that preserves unit cohesion, recruitment, retention and military effectiveness.  Today’s action follows extensive training of our military personnel and certification by Secretary Panetta and Admiral Mullen that our military is ready for repeal.  As of September 20th, service members will no longer be forced to hide who they are in order to serve our country.  Our military will no longer be deprived of the talents and skills of patriotic Americans just because they happen to be gay or lesbian.

I want to commend our civilian and military leadership for moving forward in the careful and deliberate manner that this change requires, especially with our nation at war.  I want to thank all our men and women in uniform, including those who are gay or lesbian, for their professionalism and patriotism during this transition.  Every American can be proud that our extraordinary troops and their families, like earlier generations that have adapted to other changes, will only grow stronger and remain the best fighting force in the world and a reflection of the values of justice and equality that the define us as Americans.

The brief certification letter is here.

RR

Voter ID Commentary

Stephen Colbert gave his take on proliferating voter ID laws on last night's Colbert Report.  Several states have adopted voter ID laws in order to cut down on voter fraud, or to erect a barrier to voting, depending on who you talk to.  Evidence of voter fraud at the polls is scant, though, as Colbert correctly reports:

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
Voter ID Laws
www.colbertnation.com
Colbert Report Full Episodes Political Humor & Satire Blog Video Archive

 

The Supreme Court upheld Indiana's voter ID law in 2008 in Crawford v. Marion County.  The case resulted in three opinions, with the Court spliting 3-3-3.  Justice Stevens's opinion, joined by Chief Justice Roberts and Justice Kennedy, concluded that Indiana's law was an even-handed restriction on voting, designed to protect the integrity and reliability of the electoral process.  As such, the plaintiffs, who lodged a facial challenge, had to show that they were burdened.  According to Justice Stevens, they failed.  Justice Scalia, joined by Justices Thomas and Alito, were even more deferential to the state.  Justice Souter wrote a dissent, joined by Justices Ginsburg and Breyer.  (The Indiana Supreme Court later ruled that the voter ID law violated the Equal Privileges and Immunities Clause of the state constitution.)

The plaintiffs in Crawford had two principal problems: their evidence of burden was relatively weak; and they lodged a facial challenge.  Based on Justice Stevens's opinion, if they litigated the case differently, they might have picked up Justice Stevens, and maybe even Chief Justice Roberts and Justice Kennedy.

The Court's approach in Crawford stands in contrast to its approach in another political rights case this Term, Arizona Free Enterprise Club, in which a sharply divided Court overturned Arizona's public campaign financing scheme under the First Amendment.  The doctrines in the two cases are different, to be sure, but the Court's different treatment of the states' efforts to guard against malfunctions in politics is striking.  In Crawford, the Court was highly deferential to Indiana's interest in protecting against voter fraud at the polls (despite the scant evidence in the record) and suspicious of the plaintiffs' (admittedly not terribly well supported) claims that the ID requirement was a burden.  But in Arizona Free Enterprise Club, the Court reversed: it was highly suspicious of Arizona's stated interest in reducing corruption and highly deferential to the plaintiffs' claim that the campaign finance scheme burdened their free speech rights (despite scant evidence in the record).  In short, the plaintiffs' evidence of burden was greater in Crawford, and the state's evidence supporting its interest was greater in Arizona Free Enterprise Club, but the Court credited the state's interest over the plaintiffs' burden in Crawford and the plaintiffs' evidence over the state's interest in Arizona Free Enterprise.

The Court's approaches in the two cases, which both involve key political rights, seem at odds.  The difference is (maybe) explained by the different doctrines involved in the cases.  The "even handed" restriction in Crawford triggered a balancing test, relatively deferential to the state; but the speech-burdening campaign finance scheme in Arizona Free Enterprise Club triggered strict scrutiny, not at all deferential to the state.  The different deference required by the different tests thus explains why the Court defered in two different ways.

But on the other hand, the fact that the Court analyzed these cases under these levels of scrutiny wasn't at all inevitable.  The Court in Arizona Free Enterprise Club could have applied a more deferential test--"closely drawn" to achieve "sufficently important interests," the standard that the Court uses for less speech-burdening campaign finance laws (like reporting requirements).  The state argued for this in that case.  Similarly the Court could have applied a more rigorous standard in Crawford--the strict scrutiny standard that the Court has applied to substantial burdens to voting, as in a poll tax (Harper) , e.g.  The plaintiffs argued for that in that case.  (Thus the Court might have applied greater scrutiny to the voter ID law in Crawford than to the campaign finance scheme in Arizona Free Enterprise Club!)  If the Court's deference in these cases seems inconsistent, remembering that the level of scrutiny itself was disputed in both of these cases may only reinforce that sense.  All things considered, the Court's approaches in these two cases seem at odds, to say the least--and together put a heavy thumb on the political scale in favor of those with resources (and against those without).

SDS

Florida Federal Court Rules Ten Commandments Monument Violates Establishment Clause

Senior District Judge Maurice M. Paul (N.D. Fla.) ruled last week that a Ten Commandments monument displayed just outside the Dixie County Courthouse is government speech and violates the Establishment Clause.  Judge Paul ordered Dixie County to remove the monument within 30 days.

The case involves a privately funded monument, over five-feet tall and weighing six tons, that displays the Ten Commandments and text reading "LOVE GOD AND KEEP HIS COMMANDMENTS."  Here's a picture, courtesy of the ACLU of Florida:

 

The private funder secured County Commission approval before initiating the project.  After the ACLU sued, the Commission issued its "Monument Placement Guidelines," which purported to establish a limited public forum on the courthouse steps, where the monument is located.

The county government thus argued that the monument was private speech, protected under the First Amendment Speech Clause.  Judge Paul didn't buy it.  He ruled that the monument is government speech.  He noted that while the monument is not tethered and contains the name of the private funder (with an indication that the monument belongs to the private funder), it nevertheless has all the appearances of permanence; and its location "make[s] it clear to all reasonable observers that Dixie County chooses to be associated with the message being conveyed."  Op. at 10.  (Judge Paul compared the case to the OT 08 case, Pleasant Grove City v. Summum, in which the Court ruled that the placement of a privately-funded, permanent monument in a government park, alongside other privately-funded monuments, is government speech.  If so there, so much more so here--a permanent monument on the courthouse steps.)  To get a sense, take a look at this picture, also courtesy of the ACLU of Florida:

 

Judge Paul then ruled that the monument violated the Establishment Clause:

As noted previously, permanent displays carry the indicia of government speech.  This strongly implies endorsement of the message being conveyed.  However, beyond the mere permanence of the monument, the context of the display establishes Dixie County's endorsement of its religious message.  The monument is five-feet tall, made of six tons of granite, and sits alone at the center of the top of the steps in front of the county courthouse that houses every significant local government office.  "No viewer could reasonably think that it occupies this location without the support and approval of the government."  By permitting the display of the monument in this setting, "the county sends an unmistakable message that it supports and promotes" the religious message that appears on it.

Op. at 12 (citations to County of Allegheny v. ACLU omitted).

Two terms ago, the Court ruled in Pleasant Grove that a privately-funded, permanent monument in a public park, alongside several other privately-funded monuments, was government speech (and not a public forum).  As such, the government's rejection of a privately-funded monument was not subject to scrutiny under the Free Speech Clause.  But it would have been subject to scrutiny under the Establishment Clause (if the plaintiff-respondent raised it).  (That doesn't mean the plaintiff-respondent would have won, just that the government's rejection of its monument would have been subject to Establishment Clause analysis.) 

Justice Souter noted in concurrence that the play between the government speech doctrine and the Establishment Clause hadn't been worked out.  He worried that a government, in order to dodge Establishment Clause problems, would wisely accept more monuments whenever an accepted monument had a religious character--"safety in numbers"--but that this strategy would in turn would "make it less intuitively obvious that the government is speaking in its own right simply by maintaining the monuments."  The result: The government could unwittingly create a speech forum, diluting its government speech defense and forcing it, under the Free Speech Clause, to accept monuments from all comers, including those that don't represent its views.  If so, Justice Souter argued,

the government could well argue, as a development of government speech doctrine, that when it expresses its own views, it is free of the Establishment Clause's stricture against discriminating among religious sects or groups.  Under this view of the relationship between the two doctrines, it would be easy for a government to favor some private religious speakers over others by its choice of monuments to accept.

Whether that view turns out to be sound is more than I can say at this point.  It is simply unclear how the relatively new category of government speech will relate to the more traditional categories of Establishment Clause analysis, and this case is not an occasion to speculate.

Souter Concurrence, at 3.  (For more on Justice Souter's worry, check out Prof. Mary Jean Dolan's (John Marshall) recently posted piece The Cross National Memorial: At the Intersection of Speech and Religion.)

If Pleasant Grove wasn't an occasion to explore the play between the government speech doctrine and the Establishment Clause (because the latter wasn't raised), this case isn't a likely candidate to explore it either, but for a different reason: There's only one monument.  This is a straight-forward Establishment Clause case and not one that raises issues at the intersection of these two doctrines.

SDS

Viewpoint Discrimination: Second Circuit Opinion on the Moffat Lawn

In a brief opinion today, the Second Circuit upheld summary judgment against the Town of Blooming Grove and Village of Washingtonville, New York.  The problem?   The Moffat Lawn, known familiarly as The Lawn. 

 As the court states, the "Town and Village opened the Lawn for expression on the subjects of war and
military service when they permitted speakers from private groups, including the Veterans of Foreign Wars (“VFW”), to use it."   However, when the plaintiff Alexandra Coe wanted to hold a peace rally on The Lawn, the Town demanded a one million dollar liability insurance policy, a requirement that had not been imposed on the VFW.

The Town and Village passed various regulations declaring that The Lawn was not a public forum.  The court was not impressed, because even if the forum was a limited public forum, the government could not engage in viewpoint discrimination. 

The Second Circuit also rejected the government's attempt to rely on Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), by arguing that the VFW, but not Ms. Coe, conveyed the government's message:  "we find no evidence that the Town or Village authorized, approved, controlled, or ratified the VFW’s speech." 

 

RR
[The case was litigated by a CUNY School of Law alum;
Congratulations Stephen Bergstein]
[image: Moffat Library, Washingtonville, NY, via]