Constitutional Law Prof Blog

UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?

Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple? Does it make any difference that he couple have entered into a civil partnership?

This is essentially the question presented in the UK Supreme Court's opinion in Bull v. Hall involving the Chymorvah Hotel in Cornwall, pictured below.

The main opinion, authored by the twelve justice Court's only woman member, Lady Hale, affirms the lower court's finding that the same-sex couple's equality claims must prevail.  While the decision is unanimous, some justices wrote separately because of differing on the rationale, including whether the discrimination should be deemed direct or indirect.  These differences resulted from highlighting sexual orientation or highlighting marital status, with the added wrinkle of civil partnership being equivalent to marriage.

But clearly, the Court held, there was discrimination.  And further, the Court held, that discrimination cannot be justified.  The Court construed the statutory frameworks prohibiting discrimination based on both sexual orientation and religious belief, and then turned to article 9 of the European Convention on Human Rights, which guarantees the ability to manifest religious beliefs in “worship, teaching, practice and observance."  But Article 9 also provides:

Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

This "rights of others" qualification is key to the Lady Hale's analysis, as these rights  include rights under "ordinary law," including UK's regulatory framework that prohibits discrimination.

But, as Lady Hale makes clear, it is not a matter of sexual orientation discrimination trumping religious discrimination.  Instead:

If Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today.

While the UK Supreme Court did cite cases from other jurisdictions, it sometimes noted that they occurred in a "different constitutional context."  

In the United States, the constitutional context pits First Amendment rights of free exercise of religion against Equal Protection rights based on sexual orientation.  When the sexual orientation rights of equality have been statutory, the United States Supreme Court has clearly held that the First Amendment interests prevail, as in Boy Scouts of America v. Dale (2000) and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995).  However, with the constitutional recognition afforded same-sex marriage last term in United States v. Windsor under the equal protection component of the Fifth Amendment in the challenge to DOMA (Defense of Marriage Act), the legal landscape has altered.  

Thus, it may be that the US Supreme Court will soon be confronting an issue quite similar to the one that the UK Supreme Court in Bull v. Hall.  One possibility is Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer and in which Elane Photography has filed a petition for writ of certiorari.

Interestingly, the petition relies upon the compelled speech doctrine, arguing that requiring Elane Photography, a wedding photographer to photograph a same-sex wedding would be to require her to "create expressive images" that conveyed messages that conflict with her religious beliefs and therefore violates the First Amendment doctrine of compelled speech.  The petition heavily relies upon Wooley v. Maynard (19977) the New Hampshire "leave free or die" license plate case. As Lyle Denniston notes, the case "does not ask the Court to rule on any right of gays and lesbians to marry" and NM presently does not either prohibit or allow same-sex marriage. 

Given the US Supreme Court's highly discretionary grant of certiorari and the lack of a developed conflict in the circuits on this issue, it seems more likely than not that the US Supreme Court will refuse to hear Elane Photography.  But given the probabilities of recurrence of the issue, the US Supreme Court will most likely be confronting this issue sometime soon.

Treasury Proposes New Rules for Social Welfare Organizations in Politics

The Treasury Department yesterday announced that it will propose new guidance for social welfare organizations that will better define the requirements for tax-exempt status for those organizations engaged in candidate-related political activities.

The new proposed guidance is aimed at 501(c)(4) organizations, which are organized under the IRC for social welfare purposes, but nevertheless engage in significant political activities.  The 501(c)(4) form allows these organizations to fly under the radar while still engaging in politics.  For example, 501(c)(4) organizations need not disclose their donors to the FEC, and they need not disclose all of their political activities to the IRS.  (The Center for Responsive Politics notes that "Americans for Tax Reform, for instance, told the FEC it spent $15.8 million on independent expenditures in 2012, while it told the IRS it spent just $9.8 million.)  An organization can retain its 501(c)(4) status so long as less than half (up to 49%) of its activity is political.

These "dark money" organizations have exerted dramatically increased influence in elections: "While nonprofit organizations spent just $5.2 million on federal elections in 2006, that number rocketed to more than $300 million by 2012," according to The Daily Beast.  These organizations include tea party groups and others that the IRS targeted, leading to an IG report earlier this year, which led to the proposed rules.

The proposed guidance is designed to make it easier for the IRS to determine whether a social welfare organization exceeds the threshold for candidate-related political activities by better defining those activities.  "These proposed rules reduce the need to conduct fact-intensive inquiries, including inquiries into whether activities or communications are neutral and unbiased."  The likely net result is that some or many of these organizations will find that their activities now increase the percentage of "candidate-related political activity" in which they're involved, forcing them either to reduce their political activities or to lose their non-profit status.

The proposed guidance "defines the term 'candidate-related political activity,' and would amend current regulations by indicating that the promotion of social welfare does not include this kind of activity."  In particular, the guidance defines certain communications, grants and contributions, and activities closely related to elections or to candidates as "candidate-related political activity." 

Citizens for Responsibility and Ethics in Washington has a statement here and a resource page here.  The Center for Responsive Politics has a statement here and a resource page, with a nice graphic, here.

United States Supreme Court Grants Certiorari on Religious Claims of Secular For-Profit Corporation

As widely expected, United States Supreme Court has granted the petitions for writ of certiorari to the Tenth Circuit's divided en banc opinion in Hobby Lobby v. Sebelius as well as to the Third Circuit's divided opinion in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services.  

Supreme Court Justices by Donkey Hotey

 

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

The majority of the Third Circuit panel opinion in Conestoga Wood Specialities Corporation, articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both.  First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010), distinguishing free speech from free exercise of religion.  Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners, and concluded that the PPACA did not actually require the persons who are owners to "do" anything.

For ConLaw Profs, here are some useful links:  A discussion of the most recent circuit case, decided earlier in November by the Seventh Circuit, is here;  a digest of the previous circuit court cases and some discussion of the controversy is here, some interesting hypotheticals (good for teaching and exam purposes) as posed by Seventh Circuit Judge Rovner are here,  ConLawProf Marci Hamilton's discussion is here, a critique of the sincerity of claims in Eden Foods is here,  a discussion of the district judge's opinion in Hobby Lobby is here,  a discussion of the Tenth Circuit en banc opinion in Hobby Lobby is here, and the SCOTUSblog page with briefs is here.

[image: Supreme Court Justices by Donkey Hotey via]

~Ruthann Robson

Daily Read: Julie Goldscheid on the Constitutional and Social Problems of Violence Against "Women" (on this International Day for the Elimination of Violence Against Women)

The 25th of November is "International Day for the Elimination of Violence against Women" declared by the United Nations by a Resolution in 2000. 

The resolution echoes earlier attention to the problem which it defines as including

any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.

The responsibility of governments to address private violence is one that is controversial in United States constitutional law, but so - - - and perhaps increasingly - - - is the framing of the issue with special attention to victims on the basis of gender.  Isn't a focus on women violative of sex-equality, excluding not only men but transgender and gender nonconforming people?

Professor Julie Goldscheid (pictured) takes on this issue in her forthcoming article, Gender Neutrality, the “Violence Against Women” Frame, and Transformative Reform, available in draft on ssrn.  Goldscheid uses framing theory to explain the benefits and disadvantages of the frame "violence against women."  She discusses constitutional challenges against anti-violence legislation and regulations that codify the woman-specific lens, including one from West Virginia and California in which equal protection arguments were mounted.  In West Virginia, the Supreme Court of Appeals in  Men & Women Against Discrimination v. Family Protection Servs. Bd. ultimately upheld the special requirements for men.  As Goldscheid describes it, the court

concluded that the rule authorizing particular rules for male victims and adult male children was “not unreasonable” given that the majority of domestic violence victims seeking shelter are women, and that the provision requiring training in historical attitudes toward women simply mandated gender-neutral instruction about the history of domestic violence and did not imply that all perpetrators are men or that women cannot be perpetrators.

To the contrary, in California the appellate court applied strict scrutiny under its state constitution to state sex-specific provisions in Woods v. Horton and found they were not justified by a compelling governmental interest and that gender-neutral alternatives were possible.  However, the court did not find the state provisions unconstitutional, but, as Goldscheid explains,

the remedy was to reform the statutory provisions to provide funding to survivors regardless of gender.  The court recognized that the vast majority of the programs funded under the programs already were provided on a gender-neutral basis. It also recognized that programs need not offer identical services to men and women, given the disparity in the number of women needing services.  For example, the court recognized that a program might offer shelter for women, but only hotel vouchers for men.

These cases do not lead Goldscheid to advocate for a simplistic gender-neutral approach, but to argue for what she names a "modest shift" that "meets both descriptive and transformative goals, and that is sensitive to differences in context and usage."  

Goldscheid's solution - - - discussed in her article - - - credits the power in naming and framing.  It may be "modest," as she suggests, but it is certainly worth contemplating on this International Day for the Elimination of Violence against Women.

Federal District Judge Rules Exemption of Housing as Clergy Income Violates Establishment Clause

Judge Barbara Crabb (pictured) of the Western District of Wisconsin concluded in her  opinion in Freedom from Religion Foundation v. Lew that 26 U.S.C. § 107(2) violates the establishment clause of the First Amendment to the United States Constitution.

The statute at issue provides that:

In the case of a minister of the gospel, gross income does not include—

 (1) the rental value of a home furnished to him as part of his compensation; or
(2) the rental allowance paid to him as part of his compensation, to the extent used by him to rent or provide a home and to the extent such allowance does not exceed the fair rental value of the home, including furnishings and appurtenances such as a garage, plus the cost of utilities.

 

Judge Crabb's opinion on the merits focuses on the issue of the exemption being granted solely to religious persons.  Following the parties' reliance on a "modified version" of the Lemon test, Lemon v. Kurtzman, 403 U.S. 602 (1971), she also gives great weight to Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989), "the only case in which the Supreme Court has addressed the constitutionality of a tax exemption granted solely to religious persons."  The plurality in Texas Monthly  found that the statute exempting from the state sales tax “periodicals that are published or distributed by a religious faith and that consist wholly of writings promulgating the teaching of the faith and books that consist wholly of writings sacred to a religious faith” was unconstitutional under the Establishment Clause.  

 

Judge Crabb noted that the defendants did not distinguish Texas Monthly, but instead argued that other cases were controlling, such as the 1970 case of Walz v. Tax Commission of City of New York, although in Texas Monthly the plurality distinguished Walz as being permissible as a broad tax exemption that was not confined to religious institutions or persons.  Judge Crabb also rejected the tax exemption/ tax subsidy distinction argued by the defendants. 

 

Perhaps most interestingly, Judge Crabb rejected the argument by the defendants that §107 was not limited to religious persons.  She wrote:

 

I am not aware of any decision in which a majority of the Supreme Court considered whether a claim under the establishment clause would be defeated if the particular benefit at issue were granted to atheists, but still excluded secular groups. At least in the context of this case, there is a plausible argument that the claim would survive. . . .

Regardless, to the extent defendants mean to argue that § 107(2) is constitutional because of an abstract possibility that an atheist could qualify as a minister of the gospel, I disagree. . . .

In this case, no reasonable construction of § 107 would include atheists. In the concurring opinion in Texas Monthly that defendants cite, Justice Blackmun rejected as “facially implausible” an argument that atheistic literature could be included as part of “[p]eriodicals that are published or distributed by a religious faith and that consist wholly of writings promulgating the teaching of the faith and books that consist wholly of writings sacred to a religious faith.” Texas Monthly, 489 U.S. at 29 (Blackmun, J., concurring in the judgment). Defendants do not explain why they believe interpreting § 107 to include atheists is any more plausible. Hearings Before the H. Comm. on Ways & Means, 83rd Cong. at 1574-75 (sponsor of § 107(2) stating that purpose of law was to help ministers who are “fight[ing] against” a “godless and anti-religious world movement”).

The issue of whether §107 would plausibly cover atheists was also important to Judge Crabb's conclusion that the plaintiff organization and individual plaintiffs had standing.

Archbishop's House Chicago

Judge Crabb's opinion centers the exclusion of nonbelievers as well as the Lemon test in a way that some current Establishment Clause litigation fails to do, such as the recent oral argument in Town of Greece v. Galloway.  The constitutionality of government preference for religion over "irreligion" is an unsettled contention at the heart of Establishment Clause jurisprudence.  It ensures the decision will be appealed to the Seventh Circuit.

[image via]

Sunday Dress: Profiling Clothes and Stop and Frisk

As police and state officials struggle to develop "objective" criteria that might support reasonable suspicion for a stop and frisk in light of constitutional issues (which we last discussed here), relying clothing and other attire may not be a good idea.

 

 

Read more on 1584.

Keeping Up With the Second Circuit's Stop and Frisk Decisions

The Second Circuit late Friday entered yet another decision in In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., this time on four motions before the panel.  Recall that the Second Circuit panel previously entered an opinion clarifying its removal of District Judge Shira Scheindlin after its original brief order issuing a stay and removing her as judge, an occurrence that is apparently not so rare.   Judge Shira Scheindlin's opinions and orders in Floyd v. City of New York and in Ligon v. City of New York  found the NYPD's implementation of stop and frisk violative of equal protection.

In this most recent order from the Second Circuit panel, it denied NYC's motion to vacate Judge Scheindlin's orders and opinions, rather than issuing a stay.  This move by NYC - - - given that a change in mayors is imminent - - - certainly had political interpretations.  But whatever NYC's motives, the Court rejected the invitation to vacate the opinions. 

The Second Circuit panel also denied the motions seeking intervention by Judge Scheindlin, essentially characterizing them as moot given the panel's clarifying order and the denial of the motion to vacate.   However, the panel did take the opportunity to disagree with the motion's representation that the panel did not have access to the transcript of proceedings in the related case upon which it based its findings that Judge Scheindlin may have committed an improper application of the Court’s “related case rule.”  The Second Circuit panel stated:

A review of the record of the Court of Appeals, and of the October 29, 2013 extended oral argument in these cases, will reveal that the panel members had the transcript of the December 21, 2007 proceeding in front of them during the hearing, and that they asked questions in open court regarding its substance. For example, during the oral argument, one member of the panel twice referred to the proceedings in detail, and clearly noted that he was quoting from page 42 of the December 21, 2007 transcript. Our October 31, 2013 order specifically cited the transcript by caption, docket number, and date, and it included quotations that had not been reported in the New York Times article that was cited, or in any other public news report known to the panel.

It's interesting that the Second Circuit panel took time to refute the contention with specifics - - - and perhaps it is important that the panel also noted that the assertion that it did not have the transcript was being "echoed" by "other movants in the case," with this citation:

See, e.g., Br. of Amici Curiae Six Retired United States District Court Judges and Thirteen Professors of Legal Ethics, Ligon v. City of New York, No. 13-3123, Dkt. 221, Floyd v. City of New York, No. 13-3088, Dkt. 313, at 14.

The Second Circuit panel surely wants to correct the record about the record on this point.

FEC Denies Disclosure Exemption for Tea Party

The Federal Election Commission split 2-2 and thus denied a request from the Tea Party Leadership Fund for an exemption from FEC disclosure requirements of names of individual contributors who contributed more than $200 to the group.  The non-action means that the Tea Party Leadership Fund will have to disclose contributors like everybody else subject to the FEC's disclosure requirement.  NPR reports here.

The Tea Party argued that its donors are subject to harassment and hostility from government officials and private actors--with over 1,400 pages of evidence.  Two Commissioners reportedly agreed, and two disagreed.  The two competing draft FEC opinions are here.  The Commission, splitting 2-2, didn't accept either.  That meant that the Tea Party's request was denied.

The Court upheld disclosure requirements against a facial challenge in Buckley v. Valeo.  But it also said that the disclosure requirements might be unconstitutional as against a minor party that could show a "reasonable probability" that its contributors would be subjected to threats, harassment, and reprisals if their contributions were disclosed.  Buckley at 69-74 (discussing NAACP v. Alabama). 

Courts and the FEC have awarded an exemption under this standard only in very narrow cases, to the Communist Party and the Socialist Workers Party, minor parties that "rarely have firm financial foundation."  On the other hand, a court in 2011 denied an exemption to ProtectMarriage.com, a group that raised $30 million and supported California's Prop 8 (banning same-sex marriage in the state).  (Doe v. Reed, the Court's 2010 case, involved disclosure, but by way of a state's Public Records Act, not the FEC regs.)

Reid to go Nuclear

Senate Majority Leader Harry Reid announced today that he's proposing changes to the Senate rules that would abolish the filibuster for most judicial and executive branch nominees.  Reid's proposal would reportedly retain the filibuster for Supreme Court nominees.

Politico reports here.

Reid is reportedly prepared to go nuclear--that is, to change the rules by a simple majority vote.

Reid's proposal comes on the heels of three successful filibusters in as many weeks by Senate Republicans of President Obama's picks for the D.C. Circuit.

Closely Divided United States Supreme Court Allows Enforcement of Restrictive Texas Abortion Law

In a 5-4 decision in Planned Parenthood of Greater Texas v. Abbott,  the United States Supreme Court has refused to vacate the Fifth Circuit's stay  of the district judge's injunction against the enforcement of the abortion restriction law known as  Texas HB 2, that had been the subject of the well-publicized filibuster by state senator Wendy Davis.

The Court's Order was accompanied by two opinions.  In the first, a concurring opinion authored by Justice Scalia and joined by Justices Thomas and Alito, the four factors for a stay are laid out:

(1) whether the State made a strong showing that it was likely to succeed on the merits,
(2) whether the State would have been irreparably injured absent a stay,
(3) whether issuance of a stay would substantially injure other parties, and
(4) where the public interest lay.

Justice Scalia's relatively brief opinion is primarily a refutation of the dissenting opinion, arguing that the

dissent would vacate the Court of Appeals’ stay without expressly rejecting that court’s analysis of any of the governing factors. And it would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably un- constitutional. Reasonable minds can perhaps disagree about whether the Court of Appeals should have granted a stay in this case. But there is no doubt that the applicants have not carried their heavy burden of showing that doing so was a clear violation of accepted legal standards— which do not include a special “status quo” standard for laws affecting abortion.

The dissent, written by Justice Breyer and joined by Justices Ginsburg, Sotomayor, and Kagan, argued that the Fifth Circuit's issuance of the stay was "demonstrably wrong" in its application of the standards for issuing a stay based on six reasons:

• the district judge's order maintained the status quo that existed in Texas prior to the hospital admitting privileges requirement;
• the Fifth Circuit's stay disrupted that status quo, so that a "significant number of women seeking abortions" will be affected and that the "longer a given facility remains closed, the less likely it is ever to reopen even if the admitting privileges requirement is ultimately held unconstitutional;"
• the Fifth Circuit agreed to expedite its consideration, again favoring the status quo;
• the balance of harms tilts in favor of the applicants;
• the "underlying legal question—whether the new Texas statute is constitutional—is a difficult question" that at least four Members of this Court will wish to consider irrespective of the Fifth Circuit's ultimate decision;" and
• there was not a significant public interest consideration.

Given the four Justices who joined the dissent, it is clear that the decision not to vacate the stay was 5-4, although Justice Kennedy and Chief Justice Roberts did not join Justice Scalia's concurring opinion.

The restrictive abortion statute passed by Texas has been deeply divisive and the Court's decision demonstrates that the members of the Court are likewise deeply divided.

 

Daily Footnote: Redacted Definitions in FISA Court Opinion

Among the materials released today as we discussed earlier, is the 87 page opinion by the Presiding Judge of the Foreign Intelligence Surveillance Court, again difficult to name or cite given that the usual caption material is redacted:

 

But the opinion's footnote 27 with the portions redacted - - - and not redacted - - - does deserve special notice:

"For ease of reference, the term XXXXXXXXXXXXX   is used to mean  XXXXXXXXXXXXXX." 

 

Government Releases Trove of NSA Documents

The Obama administration late Monday released a trove of documents related to NSA surveillance, including key FISA court rulings and other materials going back to the Bush administration.  The NYT reports here.  Lawfare is covering the release and analyzing particular documents here.

The materials include documents on government e-mail and domestic phone surveillance, including the Bush administration's 2006 application for initial approval by the FISA court to collect bulk logs of domestic phone calls and a FISA court ruling approving a program to track e-mails during the Bush administration.

The Office of the Director of National Intelligence declassified and released the documents in response to FOIA lawsuits by the ACLU and EPIC.

 

The Constitutional Legacy of the Gettysburg Address

The National Constitution Center and the Constitutional Accountability Center will co-host a Town Hall discussion tomorrow, Tuesday, November 19, 2013, at noon Eastern at the National Constitution Center and simultaneously web-cast here.

On the 150th anniversary of the Gettysburg Address, join constitutional scholars and Yale Law professor Akhil Amar, historian and Princeton University professor Sean Wilentz and Jeffrey Rosen of the National Constitution Center for a wide-ranging conversation about the constitutional legacy of Lincoln and the address itself.

Also check out David Gans's (CAC) excellent post over at the Text & History Blog at the CAC, The Gettysburg Address at 150: How Lincoln's Immortal Words Helped Transform the Constitution.

Senate Republicans Block Third D.C. Circuit Nominee in Three Weeks

Senate Republicans once again successfully blocked a nominee for the D.C. Circuit.  Today's vote, 38 to 53, fell seven short of the 60 needed to overcome the Republican filibuster of Robert Wilkins's nomination to the court.  Politico reports here.

This now puts Republicans at 3-0 in the last three weeks in blocking judicial nominees to the D.C. Circuit.  In the last two weeks, they successfully filibustered Patricia Millett and Nina Pillard.

Some Senate Democrats are making more noise about using the nuclear option, that is, getting rid of the filibuster (the cloture rule) for judicial nominees.  Republicans (still) say that the court isn't busy enough to fill the three vacancies, and that they're just doing the same thing that Democrats did when they blocked President Bush's nominee to the court, Peter Keisler. 

Active judges on the court are evenly divided between those appointed by Democrats and those appointed by Republicans.  But five of the court's six senior judges--who still sit and decide cases--are appointed by conservatives.  Indeed, 15 of the last 19 appointments to the court were by Republican presidents.

Supreme Court Refuses to Grant Extraordinary Writ to Review FISA's Verizon Surveillance Order

In its routine order list today, the Court's list of "MANDAMUS DENIED" included "13-58 - IN RE ELECTRONIC PRIVACY INFORMATION CENTER." 

The petition for writ of mandamus and prohibition or writ of certiorari was filed by the Electronic Privacy Information Center and essentially sought review of an Order from the Foreign Intelligence Surveillance Court.  The order redacts the names of the parties from whom the "tangible things" are sought, but the petition describes the order as compelling "Verizon Business Network Services to produce to the National Security Agency, on an ongoing basis, all of the call detail records of Verizon customers."

As one of its Questions Presented, the petition stated:

Whether the Foreign Intelligence Surveillance Court exceeded its narrow statutory authority to authorize foreign intelligence surveillance, under 50 U.S.C. § 1861, when it ordered Verizon to disclose records to the National Security Agency for all telephone communications “wholly within the United States, including local telephone calls.” 

The import of the Supreme Court's denial is both trivial and momentous.  On the one hand, there is little if anything to be read into the Court's refusal to exercise its highly discretionary power to grant a petition for a writ as it does in 1% of cases.  On the other hand, there is something to be inferred about the Court's interest in and willingness to supervise the unusual FISA given constitutional rights.

But the Court's failure to accept the case certainly does not mean the underlying issues will be so easily dispatched.

 

Daily Read: "Reassignment" by Toby Heytens (or was it so unusual that the Second Circuit reassigned the "Stop and Frisk" cases?)

As we discussed last week, in  In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., the Second Circuit clarified its removal of Judge Shira Scheindlin and as to the removal of Judge Scheindlin, wrote that reassignment "while not an everyday occurrence, is not unusual in this Circuit" and in support cited nine cases from 1999 - 2011, and discussed that it occurs in other circuits.

Would that the panel had had Professor Toby Heytens' forthcoming article, simply entitled "Reassignment," available in draft on ssrn.  Heytens discusses more than 650 reassignment cases and concludes that circuit courts have

exercised that power in pretty much every type of case imaginable: criminal cases and civil cases, federal question cases and diversity cases, “big” cases and “small” cases. Reassignment has been going on since 1958, but the pace seems to be quickening: more than 20% of the cases in my 55-year dataset were decided during the last five years, at a rate of a little more than one every two weeks during that span.

Although Heytens begins his article discussing a contentious 1996 case from the Second Circuit, involving District Judge Jack Weinstein of New York, he finds that it is another circuit that has by far the most reassignments.  Guesses?  It's the Seventh Circuit.  Interestingly, the Seventh Circuit is the only one to have a circuit rule governing reassignments and thus allows for the circuit panel to simply cite the rule and not provide any rationale for the change.  Depending upon one's point of view, this may have obscured the "removal" of Judge Scheindlin or it might have portrayed it as a normal procedure.

Although not focused on Scheindlin, here's what Heytens says about the possible differences:

On one hand, this may seem problematic, because it violates the intuition that public reason-giving is an important part of justifying the exercise of coercive judicial power.

On the other hand, reassignment underscores that there can be virtues in circumspection as well. Appellate court decisions have many audiences: not just the trial judges and the parties, but also other judges, future litigants, and other interested readers. Both the Seventh Circuit’s approach of ordering reassignment via an unexplained reference to a circuit rule that may not mean anything to most readers and the First Circuit’s approach of separating the reassignment order from the underlying opinion can be seen as ways of reducing the salience of the decision to order reassignment and thus make the decision feel less like a public scolding.

 In the stop and frisk cases, the public scolding aspect of the Second Circuit's brief initial opinion predominated - - - at least in its reception by the public.  Indeed, the revised opinion seemingly took pains to refute that interpretation.  

In his conclusion, Heytens identifies the question of "whether more fine-grained methods of measuring judicial ideology reveal any interesting patterns about how appellate judges use reassignment" as one meriting further investigation.  Certainly the reassignment of Judge Shira Scheindlin in the highly controversial stop and frisk cases will prove fertile ground.  Moreover, the question of disciplining a judge's out-of-court activities, including those that might implicate the First Amendment, should also be added to the mix.

 [image of circuit courts of appeal map via]

How the President Should Deal With the Debt Limit

Neil H. Buchanan (GW) argues at the Jurist.org that the President should just pay the nation's bills if Congress fails to increase the debt ceiling.

Buchanan summarizes an argument that he and Michael Dorf made over three articles last year in the Columbia Law Review--one, two, and three--that the President should do the least constitutional damage if ever faced with a trilemma involving taxing, spending, and a debt ceiling that don't add up. 

Buchanan and Dorf argue that Congress would create this trilemma if it failed to increase the debt limit: Congress would have authorized a particular level of taxation; Congress would have authorized a higher level of spending; and Congress would have capped the debt limit at a level lower than authorized spending.  All three are congressional acts that the President must enforce, but if the President enforces any two, he necessarily violates the third.

So: what to do?

Buchanan and Dorf argue that the constitution requires the President to take the action (1) that exercises as little legislative power as possible and (2) in a way that allows Congress to later enact legislation that can undo his actions, if it so desires.

Those two criteria mean that the President should, even must, violate the debt limit.  That's because violating the debt limit (but complying with the taxing and spending measures passed by Congress) is the choice that's least legislative in nature, and the one that Congress can later undo (by enacting taxing and spending measures that add up). 

Buchanan explains why this solution is novel--but also why it's right:

Bizarrely, the shared assumption among Republicans and Democrats alike has been that the president must simply default on the government's spending obligations, if he is ever faced with a trilemma. . . .

The reason that is so bizarre is that it simply presumes that duly-enacted spending laws can be ignored by the president.  They cannot.  We are not taking about choosing to increase or decrease future levels of spending, after all.  We are, instead, contemplating having the president refuse to honor legal claims for payment from the federal government, choosing not to pay the government's legal obligations, in full, on the date that they are due.

Religious Freedom for Corporations: Hypotheticals from Seventh Circuit Judge Rovner

The issue of religious freedom for secular for-profit corporations, whether under the statutory scheme of Religious Freedom Restoration Act or the First Amendment, in the context of the ACA's so-called contraceptive mandate is a contentious and complicated one.  Here's an overview of (and  reaction to) the issue and cases; after which the Seventh Circuit (again) rendered an opinion.

For those teaching, writing, or thinking about the issues, Judge Ilana Rovner (pictured), dissenting in the Seventh Circuit's opinion in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, offers three provocative hypotheticals.  [For those interested in more about Judge Rovner, there's an interesting interview from the Illinois Supreme Court Commission on Professionalism in a brief video available here].

Rovner's hypotheticals draw on the ACA as well as other federal laws and are especially helpful because they provide the statutory schemes as well as the facts.

In the first, an employee has ALS, commonly known as Lou Gehrig’s Disease, and has been accepted into a clinical trial testing the effectiveness of an embryonic stem-cell therapy on ALS.  The employer software company/owner's plan would cover only the costs of the employee's routine care associated with the stem cell therapy, and not the costs of the stem cell therapy itself, but the employer nevertheless believes that by covering routine care, the company plan would be facilitating his participation in a practice to which he objects on religious grounds.

In the second, the employer corporation's sole owner is "a life-long member of the Church of Christ, Scientist. Christian Science dogma postulates that illness is an illusion or false belief that can only be addressed through prayer which realigns one’s soul with God." The owner believes that "his company’s compliance with the ACA’s mandate to cover traditional medical care would be a violation of his religious principles."

In the third hypothetical, the employer corporation's owners condemn same-sex marriage and homosexuality as part of their religious views.  One of their employees seeks time off under the Family and Medical Leave Act to attend, with his husband, the birth of their child through a surrogate arrangement.  The employers not only refuse the unpaid leave under the FLMA, they terminate him, because neither the owners nor their company can in any way recognize or facilitate such an immoral arrangement against their religious beliefs.

These hypotheticals would make a terrific in class discussion.  They appear on pages 68 - 76 of the opinion; and for convenience, without accompanying footnotes, below.

 

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Sunday Dress: Confederate Flag Attire, Kayne West, and Schools

Rapper and celebrity Kayne West is selling tour t-shirts with an image of the Confederate flag and provoking controversy, as this video shows:

 

But what if a student wanted to wear such a shirt to public school? 

Last month, the United States Supreme Court denied a petition for writ of certiorari to the Fourth Circuit's decision in Hardwick v. Heyward, thus continuing its refusal to hear cases in which circuit courts have upheld the ability of schools to prohibit Confederate flag gear or apparel against a First Amendment claim by students.  

Applying  Tinker v. Des Moines Independent Community School District, the circuit and district courts have generally held that there is a likelihood of substantial dispruption, whether or not the school has had a history of racial violence, and whether or not there is agreement that the meaning of the Confederate flag is connected to racism or even race.

More about the issue of wearing the Confederate flag in schools is in my column for the London School of Economics blog. 

Second Circuit Clarifies Its Opinion to Remove District Judge

In a 15 page opinion (with extensive appendices) issue late Wednesday, In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., the Second Circuit clarified its removal of Judge Shira Scheindlin, which we discussed here.   Calling her a "long serving and distinguished jurist of the United States District Court for the Southern District of New York," the Second Circuit panel nevertheless again concluded that "reassignment is advisable to preserve the appearance of justice."

In a separate order and opinion, the panel denied the motion of Judge Scheindlin's attorneys to appear.

Recall that the underlying controversy involves Judge Shira Scheindlin's orders in Floyd v. City of New York and in Ligon v. City of New York  regarding the NYPD's implementation of stop and frisk as violative of equal protection. 

In today's opinion, the panel 

"explains the basis for our order of October 31, 2013, directing the reassignment of these cases to a randomly selected district judge and supersedes that order. To reiterate, we have made no findings that Judge Scheindlin has engaged in judicial misconduct. We conclude only that, based on her conduct at the December 21, 2007 hearing and in giving the interviews to the news media in May 2013, Judge Scheindlin’s appearance of impartiality may reasonably be questioned within the meaning of 28 U.S.C. § 455 and that “reassignment is advisable to preserve the appearance of justice.”

The explanation stresses that the opinion is based on the appearance of partiality rather than any "findings of misconduct, actual bias, or actual partiality on the part of Judge Scheindlin."  Again, this appearance of partiality is twofold.  First, there are the judge's statements on the record in a related case.  After quoting some of the statements, the panel concluded:

We believe that a reasonable observer viewing this colloquy would conclude that the appearance of impartiality had been compromised. We do not mean to suggest that a district judge can never engage in a colloquy with a party during which the judge advises the party of its legal or procedural options. However, we think, particularly in combination with the public statements described below, that a reasonable observer could question the impartiality of the judge where the judge described a certain claim that differed from the one at issue in the case before her, urged a party to file a new lawsuit to assert the claim, suggested that such a claim could be viable and would likely entitle the plaintiffs to documents they sought, and advised the party to designate it as a related case so that the case would be assigned to her.

(emphasis added).

Second, the panel considered - - - as the  "statements described below" - - - the judge's statements to the press.  While the panel noted the judge  "did not specifically mention the Floyd or Ligon cases in her media interviews," nevertheless, the context was critical.  And while "nothing prohibits a judge from giving an interview to the media,"

judges who affiliate themselves with news stories by participating in interviews run the risk that the resulting stories may contribute to the appearance of partiality. It is perhaps illustrative of how such situations can get out of the control of the judge that, later in The New Yorker piece, the article quotes a former law clerk of Judge Scheindlin: “As one of her former law clerks put it, ‘What you have to remember about the judge is that she thinks cops lie.’”

The panel opinion does not reference the First Amendment.  The panel did, however, reference the Code of Conduct for United States Judges, but only to disavow its mention in the earlier order.  Here, the Second Circuit panel of judges wrote,

We now clarify that we did not intend to imply in our previous order that Judge Scheindlin engaged in misconduct cognizable either under the Code of Conduct or under the Judicial Conduct and Disability Act. . . .

But as to the removal - - - or reassignment - - - the panel again found this to be the proper remedy.  Reassignment, the panel wrote, "while not an everyday occurrence, is not unusual in this Circuit."  In support of this, the panel cited nine cases from 1999 - 2011.  The panel also noted it occurs in other circuits.  [UPDATE: For scholarship on this topic, see here].

Thus, the opinion softens some of the original language, expanding on the relatively brief previous order, but does not waver from the conclusion or remedy.  If the original order was a "slap" as some people characterized it, this replacement is more of a stern lecture rendered in patronizing and disappointed tones.

[image via]