Constitutional Law Prof Blog

Court Enjoins Government from Enforcing Contraception Certification

Judge Lee H. Rosenthal (S.D. Texas) on Friday enjoined the government from applying regulations that require "nonprofit religious organizations" to execute the self-certification forms that enable their health insurers to provide health insurance coverage for emergency contraception under Obamacare.

The ruling in East Texas Baptist University v. Sebelius says that the plaintiffs, "nonprofit religious organizations," have a substantial likelihood of success on the merits of their challenge to the regulations under the Religious Freedom Restoration Act.

The ruling is now at least the twelfth on the issue, and the cases are split.  Judge Rosenthal cites the cases in footnote 2, starting on page 2.  (These are different than the challenges to the contraception mandate by secular for-profit corporations, the case going to the Supreme Court.)

The challenged government regulations require "religious employers" that are not exempt from the contraception mandate to self-certify that they meet the criteria for "eligible organization" (opposes contraception coverage, is a nonprofit, and holds itself out as a religious organization) to their insurer or third-party administrator.  If the employer so certifies, the insurer or third-party administrator must expressly exclude contraception coverage from the group plan, but must also provide separate payments for contraception for plan participants.  (The issuer must segregate premium revenue collected from the eligible organization from the monies used to make payments for contraception services.) 

The regs attempt to build a firewall between an eligible organization and contraception provided by the insurer or third-party administrator. They were designed as a compromise for these organizations that aren't churches (on the one hand) or for-profit corporations (on the other, whose challenge to the contraception mandate is going to the Supreme Court), but organizations that have a religious dimension.

Still, many of these organizations have balked at the certification requirement.  And here (and elsewhere), they've won.

Judge Rosenthal ruled that the RFRA uses a subjective standard, from the perspective of the organization, to determine whether the government regs create a substantial burden:

But under RFRA case law, if the plaintiffs are themselves compelled or pressured by threat of punitive fines to: 1) themselves take or forbear from an action; and 2) it is their own action or forbearance that they find religiously offensive, there is a substantial burden.

Op. at 36.

Here he said there was a substantial burden--the self-certification process:

The plaintiffs have demonstrated that the mandate and accomodation will compel them to engage in an affirmative act and that they find this act--their own act--to be religiously offensive.  That act is completing and providing to their issuer or TPA the self-certification forms.  The act of self-certification does more than simply state the organization's religious objection to covering or paying for its employees to get emergency contraception.  The self-certification act designates the organization's TPA as the TPA for contraception coverage.  The act tells the TPA or issuer that it must provide the organization's employees coverage that gives those employees free access to emergency contraceptive devices and products.  That act tells the TPA or issuer that it must notify the employees of that benefit.

. . .

But the self-certification form requires the organizations to do much more than simply protest or object.  The purpose of the form is to enable the provision of the very contraceptive services to the organization's employees that the organization finds abhorrent. . . .  The purpose and effect of the form is to accomplish what the organization finds religiously forbidden and protests.  If the organizations do not act in the way the accomodation requires, they face onerous fines.

. . .

But under the accommodation, the plaintiffs' employees would obtain coverage and no-cost-sharing payments for emergency contraception only because the employees are otherwise covered by the plaintiffs' group health plan.  The government has taken significant steps to separate this payment from the group health plan.  But the coverage and payment for employees to obtain emergency contraceptive products and devices is because those employees are covered by the group health plan that the plaintiff put into place.

Op. at 36-39.

Having determined that there was a substantial burden, Judge Rosenthal proceeded to apply strict scrutiny.  As to the fit under strict scrutiny, the court said that the government didn't satisfy the least-restrictive-means test, because there were other ways for the government to achieve its interests:

The courts have identified several "less restrictive means" of serving the interests the government has identified [in promoting public health and ensuring equal access by women to health care services] than a total denial of the religious exemption request.  One is to have the government provide the contraceptive services or coverage directly to those who want them but cannot get them from their religious-organization employers. . . .  Another alternative would be to have the government work with third parties to provide emergency contraception without requiring the plaintiffs' active participation.  Still another alternative could be to have the employee self-certify on an as-needed basis that their employer is a religious nonprofit that does not provide coverage for such services.

Op. at 43.

The ruling now adds to the body of lower-court case law.  With the growing split, this is surely yet another issue (in addition to the question whether the contraception mandate violates the religious rights of secular for-profits) headed for the Supreme Court.

Reconsidering the "Pen Register": Smith v. Maryland and the Constitutionality of NSA Surveillance

As we discussed earlier this month,  two federal district judges have reached opposite conclusions regarding the constitutionality of NSA surveillance as revealed by Edward Snowden.  In Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper,  Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional.

Both of these opinions have brought renewed attention to the 1979 “pen register” case - - - Smith v. Maryland - - - which involved the application of the Fourth Amendment’s protection against “unreasonable searches and seizures” to a then new, and now outmoded, technology that could ascertain the number a phone was dialing.  As footnote 1 of Smith explained, “A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications and does not indicate whether calls are actually completed.”  It is "usually installed at a central telephone facility [and] records on a paper tape all numbers dialed from [the] line" to which it is attached.” 

In Smith, the Court looked to its “lodestar” 1967 decision in Katz v. United States (involving a telephone booth) and determined that there was no “search” under the Fourth Amendment because the person invoking the constitutional protection did not have a reasonable or legitimate expectation of privacy.  For the majority in Smith this lack of an expectation of privacy was based on  a consumer’s  understanding of telephone technology: telephone subscribers know that the telephone company receives their transmitted telephone number (that is how the call is completed) and can record that number (perhaps for a long distance charge).  And even if a consumer does not subjectively understand this, any expectation of privacy that such circumstances did not occur would not be legitimate.

Now Smith v. Maryland has become a “lodestar” decision of its own.  Judge Richard Leon's decision in Klayman extensively analyzed the opinion, eventually concluding that “the Smith pen register and the ongoing NSA Bulk Telephony Metadata Program have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”  To the contrary, Judge Pauley, granting the government's motion to dismiss in ACLU v. Clapper essentially used Smith as the opinion's guiding light.

But perhaps the choice is not as stark as whether Smith is steady in the Fourth Amendment skies.  Looking at Justice Blackmun’s opinion in Smith,  he illuminates the two prongs of Katz:

as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy,"  whether, in the words of the Katz majority, the individual has shown that "he seeks to preserve [something] as private." The second question is whether the individual's subjective expectation of privacy is "one that society is prepared to recognize as 'reasonable,' "—whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is "justifiable" under the circumstances.⁵

[citations omitted].  Perhaps importantly, the passage ends with a footnote:

Situations can be imagined, of course, in which Katz' two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation or privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation's traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual's subjective expectations had been "conditioned" by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a "legitimate expectation of privacy" existed in such cases, a normative inquiry would be proper.

Law Prof Josh Blackman, over at his blog, has revealed the sources of this footnote - - - apparently necessary to address Justice Stevens’ concerns about a totalitarian regime that would make any expectation of privacy by individuals not reasonable or legitimate.  Josh Blackman reproduces the correspondence showing that Stevens asked for the footnote and got it, eliminating his need for a separate concurrence.  

Apparently, Justices Stewart, Marshall, and Brennan, who did dissent, had concerns that were not so simply assuaged.

Nevertheless, it’s interesting to deliberate footnote 5 in light of the extent to which Edward Snowden’s revelations about the extent of surveillance have been greeted as confirmatory and predictable rather than as shocking and outrageous.   And perhaps footnote 5 might become as important as other constitutional footnotes as we (re)consider what the expectations of privacy in a constitutional democracy should be.

[image: time-lapsed image of Polaris, the North Star, via]

 

AALS Program 2014 Constitutional Law Programs

The AALS Annual Meeting will be held January 2-5, 2014 in NYC. 

The theme of the meeting is "Looking Forward: Legal Education in the 21st Century" and many events center on the current unsettled situation, which some call a "crisis," in legal education.

The full program features a number of panels with a constitutional law focus, including the program sponsored by the AALS Constitutional Law Section "The Importance of Constitutionalism" in 2 parts on Friday, and the AALS Academic Symposium "Comparative Constitutional Change: New Perspectives on Formal and Informal Amendment " in 4 parts on Sunday.

Although there are many panels that implicate constitutional issues, here's a list of panels of special interest, organized by time, with description and speakers:

Friday, January 3, 2014

8:30 am - 10: 15

The Importance of Constitutionalism: PART I

The Constitution, like the Roman god Janus, faces in two directions.  One face is oriented towards the Supreme Court.  The Court has long dominated how we think and talk about the Constitution.  The other face of the Constitution is oriented towards ordinary citizens and towards politics.  Studies of constitutionalism focus on the larger social and political structures within which the Constitution and the Supreme Court are embedded.   The two panels will provide a snapshot of constitutionalism scholarship, with this first panel focused on ordinary citizens and how they help shape the meaning of the Constitution.  

Moderator: M. Isabel Medina, Loyola University New Orleans College of Law
Speakers:
Kim Lane Scheppele, University of Pennsylvania Law School
David D. Cole, Georgetown University Law Center
Reva B. Siegel, Yale Law School
Rebecca E. Zietlow, University of Toledo College of Law

 

Ag-Gag Laws, Animals, Agriculture and Speech  (Animal Law)

This session will examine the recent passage of laws in a number of states prohibiting undercover videos of agricultural facilities.  These "ag-gag" laws, (a term coined by New York Times food writer, Mark Bittman), either make it a crime to tape animal cruelty or force photographers to turn over their images to law enforcement within 48 hours, making it very difficult (and illegal) to conduct an undercover investigation of any length and detail.  This panel will discuss the constitutional, ethical and practical implications of these statutes as well as their potential impact on animal welfare.

Moderator: Susan J. Hankin, University of Maryland Francis King Carey School of Law
Speakers:
Tucker B. Culbertson, Syracuse University College of Law
Mr. Edward Greenberg, Esq., Edward C. Greenberg LLC
Sheila Rodriguez, Rutgers School of Law - Camden

 10:30am - 12:15 pm

Stop And Frisk as a Policing Tactic: The Situation Post-Floyd (Hot Topic)

The widespread use of stop and frisk tactic by the NYPD has been the signature feature of recent policing efforts in America’s largest city, and has been a point of contention in the City for nearly two decades.  These tactics are based on the proactive and intensive use of Terry stops.  Over this time, stop and frisk has been credited by the city’s Police Commissioners and two Mayors with lowering the rate of violent crime. After 20 years of stop and frisk policing, New Yorkers have grown skeptical about the tactic and it has generated anger and protest in minority neighborhoods. The contentious debate over this police practice has moved center stage with the U.S. District Court decision in Floyd v. City of New York, a bench trial in which Judge Shira A. Scheindlin ruled that NYPD practices violate the Fourth and Fourteenth Amendments of the U.S. Constitution.  This decision has had important political implications in the context of the recent Mayoral election and continues as a legal issue whose long-term outcome is unclear.  This panel will consider the decision, its basis and its potential aftermath.

Speakers:
Bennett Capers, Brooklyn Law School
Jeffrey Fagan, Columbia University School of Law
Ms. Miriam Gohara, Federal Capital Habeas Project
Tom Tyler, Yale Law School

Standing in the Roberts Court (Federal Courts Section)

 Issues of Article III standing loomed large over the Supreme Court’s October 2012 Term.  The Court recently placed significant limits on the power of private litigants to challenge secret government surveillance programs (Clapper v. Amnesty International (2013)).  And in the same-sex marriage cases, the Court had before it the power of a State to confer standing on private parties to defend state law (Hollingsworth v. Perry: Proposition 8), along with issues of legislative and executive standing (United States v. Windsor: Defense of Marriage Act).  This program will explore the standing questions presented by those cases as well as other important standing rulings of the Roberts Court, such as the “special solicitude” purportedly given to states qua plaintiffs in Massachusetts v. EPA (2007). Do these cases portend a shift in the Court’s standing jurisprudence, or a continuation of prior practice?

Moderator: Gillian E. Metzger, Columbia University School of Law
Speakers:
Steven Calabresi, Northwestern University School of Law
Heather Elliott, The University of Alabama School of Law
Richard H. Fallon, Jr., Harvard Law School
Paul R Gugliuzza, Boston University School of Law
Vicki C. Jackson, Harvard Law School
Ann Woolhandler, University of Virginia School of Law

 

1:30 pm - 3:15 pm

Constitution-Making in Egypt and the Middle East: A Stalled Arab Spring or a Pathway to Democracy? (AALS Hot Topic/Bridge Program)

Recent legal events in Egypt and elsewhere in the Middle East have tempered the optimism that many legal observers felt after the Arab Spring.  Drawing on that experience, the panel will offer new perspectives on the relationship between democratic revolution and constitutional foundation. Building on recent theoretical and empirical work by its participants, the panel will focus on several interrelated issues: the major risks involved in revolutionary change and in constitutional replacement; the proper design of the constitution-making process; the role of women in constitutional transitions; and the functions of domestic and international institutions in supervising democratic transitions.  Panelists will highlight the ways in which recent events in Egypt and elsewhere in the Middle East challenge the conventional wisdom on what factors and actors contribute to a successful democratic transition.

 Moderator: Kim Lane Scheppele, University of Pennsylvania Law School
Speakers:
Richard Albert, Boston College Law School
David E. Landau, Florida State University College of Law
William Partlett, Columbia University School of Law
Kristen A. Stilt, Northwestern University School of Law
Ozan O. Varol, Lewis and Clark Law School

 

The Right to Vote: From Reynolds v. Sims to Shelby County and Beyond  (Legislation and Law of the Political Process)

Voting rights are at crossroads in the United States.  Fifty years after the Supreme Court’s landmark decision in Reynolds v. Sims established the “one person, one vote” rule, there remains a fierce debate over the right to vote.  Upon his reelection, President Obama called for us to “fix” the problems that many Americans still experience, subsequently creating a bipartisan commission to craft recommendations.  And in 2013, the Supreme Court decided Shelby County v. Holder, striking down the Voting Rights Act’s coverage formula for preclearance.
This panel will explore the past, present, and future of the fundamental right to vote, from the “one person, one vote” doctrine, to the Voting Rights Act, to contemporary calls for election reform.  Panelists will discuss the impact and implications of the decision in Shelby County, as well as the appropriate role of the federal courts in protecting the right to vote and promoting electoral competition.  We will also discuss changes that Congress should consider to promote voting rights and the integrity of our democratic process.  Should we continue to focus on race-conscious remedies like the Voting Rights Act?  Or should we consider measures designed to improve participation and representation generally?

Moderator: Daniel P. Tokaji, The Ohio State University, Michael E. Moritz College of Law
Speakers:
Michael R. Dimino, Sr., Widener University School of Law
Derek T. Muller, Pepperdine University School of Law
Richard H. Pildes, New York University School of Law
Lori Ringhand, University of Georgia School of Law
Franita Tolson, Florida State University College of Law

 

The U.S. Supreme Court and the Press: Tensions and Trends (Mass Communication Law)

Fifty years ago, when the U.S. Supreme Court decided the landmark case of New York Times v. Sullivan, it signaled what many now see as a high-water mark in the protection of and appreciation for the role of a free press in our democracy.   In the subsequent five decades, both the press and the Supreme Court have experienced significant change, and each has faced criticism for its treatment of the other.
This panel will investigate the complex dynamic between the U.S. Supreme Court and the media that reports on its work, considering trends in the Court’s depictions of the media and trends in the media’s depiction of the Court.  Media scholars and members of the U.S. Supreme Court press corps will discuss the Supreme Court’s apparently declining perceptions of the press in its opinions and will compare and contrast the individual Justices’ views on the media.  They will question the strengths and limitations of the Court’s current policies regarding the press; consider the as-yet rejected proposals to introduce cameras or social media in the courtroom; and investigate ways that the media could improve its coverage of the Court and enhance public knowledge of the institution and its work.

Moderator: RonNell Andersen Jones, Brigham Young University, J. Reuben Clark Law School
Speakers:
Keith J. Bybee, Syracuse University College of Law
Leslie Kendrick, University of Virginia School of Law
Mr. Adam Liptak, New York Times
Ms. Dahlia Lithwick, Slate Magazine
Mr. Anthony E. Mauro, National Law Journal

3:30 pm - 5:15 pm 

The Importance of Constitutionalism: PART II

 The Constitution, like the Roman god Janus, faces in two directions.  One face is oriented towards the Supreme Court.  The Court has long dominated how we think and talk about the Constitution.  The other face of the Constitution is oriented towards ordinary citizens and towards politics.  Studies of constitutionalism focus on the larger social and political structures within which the Constitution and the Supreme Court are embedded.   The two panels will provide a snapshot of constitutionalism scholarship, with this second panel focused on whether the Constitution facilitates or undermines the goals set forth in the Preamble. 

Moderator: Miguel Schor, Drake University School of Law
Speakers:
Randy E. Barnett, Georgetown University Law Center
Mark A. Graber, University of Maryland Francis King Carey School of Law
David S. Law, Washington University in St. Louis School of Law
Sanford Levinson, The University of Texas School of Law

Saturday, January 4, 2014

8:30 am - 10:15 am

 

The Cyber-surveillance Debate (AALS Hot Topic/Bridge Program)

Recent revelations about the scope of the National Security Administration’s cybersurveillance program have sparked considerable controversy both within and outside of the United States. Domestically, civil liberties advocates are concerned about the effect of cybersurveillance on individual rights. Internationally, the NSA program has been a point of contention with allies and is potentially inconsistent with international law.
This panel will provide an overview of the current controversies about cybersurveillance. Speakers will address a variety of questions that the NSA program has sparked: How can governments implement surveillance programs to achieve national security and law enforcement goals in ways that respect individual privacy? Has the program undermined U.S. foreign policy objectives? Has it affected digital commerce and international trade? What should intermediaries do when faced with requests for information about their users? How should states handle the data collected? This panel will provide an introduction to the U.S. and international laws relevant to cybersurveillance, the technological tools at issue, questions raised by the use of such tools in terms of individual rights, and the proposals currently on the table for regulation.

Moderator and Speaker: Molly Land, University of Connecticut School of Law
Speakers:
Anupam Chander, University of California at Davis School of Law
Anjali Dalal (Yale)
Woodrow Hartzog, Samford University, Cumberland School of Law
Gregory S. McNeal, Pepperdine University School of Law

10:30 am - 12:15 pm

Constitutional Conflict and Development: Perspectives from South Asia and Africa (Africa and Law and South Asian Studies Joint Program, Co-Sponsored by Sections on Comparative Law and Constitutional Law)

Recent times have brought extraordinary constitutional change in both Africa and South Asia.  From the revolutions and constitution-building efforts in Tunisia, Libya and Egypt and the continued evolution of constitutional jurisprudence in South Africa, to efforts to stabilize legal processes through judicial review in Pakistan and expand the power of the central government in India, vast and profound constitutional changes are occurring in these regions.
This Joint Program will explore the constitutional conflict, development, change and evolution in these regions, and to assess, engage, critique and better understand constitutional changes and developments across the globe. 

Moderator: Matthew H. Charity, Western New England University School of Law

Speakers:
Stephen J. Ellmann, New York Law School
Mr. Gedion Timothewos Hessebon, Central European University Department of Legal Studies
Manoj Mate, Whittier Law School
Dr. David Mednicoff, Ph.D., University of Massachusetts Amherst Center for Public Policy and Administration
Mr. Nathan Willis, Southern Cross University

 

Under the Parental Gaze in the 21st Century: Children Privacy Rights Against Their Parents (Defamation and Privacy, Co-Sponsored by Sections on Children and the Law and Family and Juvenile Law)

Electronic surveillance technology and social media have significantly changed childhood in the Twenty-First Century. The digitization and electronic monitoring of children have altered the parent-child relationship and have significant ramifications for children’s privacy. At the same time, privacy scholars’ discussion of children’s privacy has focused mainly on the privacy of children from third parties, such as companies that collect personal information on the Internet. Similarly, family law scholars have paid little attention to children’s privacy, limiting the discussion to medical decision-making, and particularly abortion decisions. Yet, few have explored whether children have a general right to privacy against their parents.
The panel will explore areas of tension involving privacy rights of children against their parents. Panelists will address, among other issues, the impact of parental electronic surveillance online and offline, such as GPS monitoring and use of software to monitor online surfing. It will also explore potential parental privacy threatening activities online, such as posting information on children on Facebook or intervening in the creation of a child online persona.

Moderator: Gaia Bernstein, Seton Hall University School of Law
Speakers:
Dr. Ayelet Blecher-Prigat, Sha'arei Mishpat The College of Legal Studies
Pamela Laufer-Ukeles, University of Dayton School of Law
Andrea M. Matwyshyn, The Wharton School University of Pennsylvania Legal Studies and Business Ethics Department
Paul Ohm, University of Colorado School of Law
Laura A. Rosenbury, Washington University in St. Louis School of Law
Emily Gold Waldman, Pace University School of Law

 

2:00 pm - 3:45 pm

Cooperating with Evil, Complicity with Sin (Law and Religion)

What does it mean for religious believers and groups to refrain from “cooperating with evil”? When does involvement with government action rise to condoning it? And who decides whether a religious objector is “participating” in and thereby "complicit" with religiously objectionable conduct? Such questions play a central role in the HHS contraceptive mandate debate but they arise in other controversies as well – ranging from religious objections to same-sex marriage to the conscience claims of pharmacists opposed to stocking or selling abortifacients.
Numerous doctrinal issues are relevant to a discussion of this problem. These include whether allegations of moral complicity satisfy the “substantial burden” requirement a RFRA or free exercise claimant must satisfy, and how courts should take attenuated causation questions into account if a substantial burden is found to exist. Other questions relate to the concern that an expansive conception of moral complicity may extend so broadly that general accommodation statutes (or constitutional interpretations) would become unacceptable in their scope and unmanageable in their operation.  This panel will explore these and other problems arising from the relationship between conceptions of moral complicity and the evaluation of religious liberty claims under constitutional or statutory law.

Moderator: Alan E. Brownstein, University of California at Davis School of Law
Speakers:
Thomas C. Berg, University of St. Thomas School of Law
Jennifer Carr, University of Nevada, Las Vegas, William S. Boyd School of Law
Gregory A. Kalscheur, S.J., Boston College Law School
Martin S. Lederman, Georgetown University Law Center

 4:00 - 5:45 pm

What Happens With the End of Al Qaeda? (National Security Law)

 Given President Obama´s May 2013 address at the National Defense University, the Section discusses what changes would follow in the use of armed drones, military commissions, extraordinary rendition, etc., if the United States no longer relies on the 2001 Authorization for Use of Military Force. Speakers include reporters who cover the intelligence community and the Justice Department for major news outlets. Also joining the panel is Harold Koh, who upon retirement as the State Department´s legal advisor, provided a prelude to the President´s address.

Moderator: Afsheen J. Radsan, William Mitchell College of Law
Speaker: Ms. Carrie Johnson, National Public Radio
Harold Hongju Koh, Yale Law School
Greg Miller, The Washington Post
Eric Schmitt, New York Times

 Sunday, January 5, 2014

Comparative Constitutional Change: New Perspectives on Formal and Informal Amendment  (AALS Academic Symposium)

8:30 am - 10:15 am

Panel I: Constitutional Interpretation as Constitutional Change

 

Introductory Remarks: Richard Albert, Boston College Law School
Moderator: Professor Carlos L. Bernal-Pulido, Macquarie University Law School
Speakers:
James E. Fleming, Boston University School of Law
Professor Ran Hirschl, University of Toronto Faculty of Law
Samuel Issacharoff, New York University School of Law

10:30 am - 12:15 pm

Panel II: Structural Constitutional Change

Moderator: Professor Carlos L. Bernal-Pulido, Macquarie University Law School
Speakers:
Richard Albert, Boston College Law School
Stephen A. Gardbaum, University of California, Los Angeles School of Law
David E. Landau, Florida State University College of Law
Sanford Levinson, The University of Texas School of Law

1:30 pm - 2:45 pm

Panel III: The Forms and Limits of Unconstitutional Constitutional Amendments

Moderator: Dr. Joel Colon-Rios, Ph.D., Victoria University of Wellington
Rosalind Dixon, University of New South Wales
David E. Landau, Florida State University College of Law
Kim Lane Scheppele, University of Pennsylvania Law School
Mark V. Tushnet, Harvard Law School

3:00 pm - 5:00 pm

Panel IV: Difficulty and Rigidity in Constitutional Amendment

Moderator: Dr. Joel Colon-Rios, Ph.D., Victoria University of Wellington
Speakers:
Richard Albert, Boston College Law School
Thomas Ginsburg, The University of Chicago, The Law School
Vicki C. Jackson, Harvard Law School
Closing Remarks: Ozan O. Varol, Lewis and Clark Law School

Out of the Furnace? And Into the First Amendment

Can a movie be tortious consistent with the First Amendment?  That's the question raised by the  complaint in DeGroat v. Cooper filed this week in federal court concerning the movie "Out of the Furnace."

The fictional movie directed by Scott Cooper (a defendant in the lawsuit) stars actor Christian Bale (pictured right)  as Russell Blaze, who, when his younger brother "mysteriously disappears" and law enforcement seems inadequate and slow, takes the "law into his own hands" to find his missing brother.   

The plot may seem prosaic, but importantly, the action is set in the Ramapo moutains of northern New Jersey amongst a particular group of people some of whom possess a particular surname that coincides with the plaintiffs.  As a paragraph from the complaint alleges:

 [in the movie] the young man becomes involved in an underground bare-knuckle fight ring leading to his murder by a violent and evil character, Harlan De Groat, who is the chief of a gang of “inbreds” living in the Ramapo Mountains in New Jersey. Harlan DeGroat, portrayed by Woody Harrelson, is the head of a criminal gang that is identified as the Jackson Whites; which gang is described as a community of “inbreds” that inhabits the Ramapo Mountains in New Jersey. Another gang member is identified as Dwight Van Dunk. The community is depicted as lawless, drug- addicted, impoverished and violent; and the members appear to be of some sort of racially mixed heritage.

As the complaint also states, the plaintiffs "are members of the Ramapough Lunaape Nation, a Native American ethnic group recognized as a tribe by the States of New Jersey and New York," and the "Ramapough Lunaape people were referred to locally as 'Jackson Whites,' a derogatory term with various origins ascribed to it, none of them complimentary."  Moreover, "DeGroat and Van Dunk are well known common surnames among the Ramapough Lunaape Nation, and have been for two hundred years or so."

The claims for relief include defamation, false light, and negligent infliction of emotional distress.

The response by Cooper and "Relativity Media," will surely include a First Amendment defense. 

Among the cases that will be important is Time, Inc, v. Hill, decided by the Supreme Court in 1967, involving Time's discussion of a play "The Desperate Hours" in which the Time magazine article stated that the play related to a tragedy suffered by Hill and his family.   The Court ruled against  James Hill - - - who was represented by future US President Richard Nixon - - - reversing the jury verdict in the family's favor while discussing the relationships between "fictionalization" and the First Amendment. 

To the extent it is based in fact, an interesting comparison is journalist Ben McGrath's 2010 article, "Strangers on the Mountain" published in The New Yorker.  McGarth's piece centered upon the Ramapo Mountains, the people who live there, including the DeGroat family and so-called "Jackson Whites" and "Rampaough Indians," and a variety of legal issues, including criminal and environmental. 

Yet it would seem that "Out of the Furnace" has a strong First Amendment claim unless the film loses its fictional patina, a prospect that seems unlikely.  

 

 

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Shapiro on President Obama's Top Ten Constitutional Violations

Ilya Shapiro (Cato) wrote a list this week in Forbes of President Obama's Top Ten Constitutional Violations of 2013.

The top five are (not surprisingly) all related to Obamacare: (1) the delay of out-of-pocket caps; (2) the delay of the employer mandate; (3) the delay of the requirement to purchase compliant plans; (4) the exemption of Congress; and (5) the expansion of fines for employers who don't provide coverage in states where the exchanges are established by the federal government.  We posted on President Obama's authority for delays here, here, and here.

Number 8, recess appointments, is before the Court next month in Noel Canning, the case testing whether President Obama's intra-session recess appointments of three members to the NLRB violated the Recess Appointments Clause.  Number 10 is the mini-DREAM Act.

Federal District Judges Dismisses ACLU Complaint Regarding Government Collection of Telephone Metadata

In a Memorandum and Order today, federal judge William J. Pauley for the United States District Court of the Southern District of New York, granted the government's motion to dismiss in American Civil Liberties Union v. Clapper.

The judge rejected both the statutory and constitutional claims by the ACLU that the NSA's bulk telephony metadata collection program as revealed by Edward Snowden is unlawful.

The tone of the opinion is set by Judge Pauley's opening:

The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.

As to the constitutional claims, Judge Pauley specifically disagreed with Judge Leon's recent opinion in Klayman v. Obama regarding the expectation of privacy under the Fourth Amendment.  For Judge Pauley, the "pen register" case of Smith v. Maryland, decided in 1979, has not been overruled and is still controlling:

Some ponder the ubiquity of cellular telephones and how subscribers’ relationships with their telephones have evolved since Smith. While people may “have an entirely different relationship with telephones than they did thirty-four years ago,” [citing Klayman], this Court observes that their relationship with their telecommunications providers has not changed and is just as frustrating. Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones. The fact that there are more calls placed does not undermine the Supreme Court’s finding that a person has no subjective expectation of privacy in telephony metadata. . . . .Because Smith controls, the NSA’s bulk telephony metadata collection program does not violate the Fourth Amendment.

For Judge Pauley, the ownership of the metadata is crucial - - - it belongs to Verizon - - - and when a person conveys information to a third party such as Verizon, a person forfeits any right of privacy.  The Fourth Amendment is no more implicated in this case as it would be if law enforcement accessed a DNA or fingerprint database.

The absence of any Fourth Amendment claim means that there is not a First Amendment claim.  Any burden on First Amendment rights from surveillance constitutional under the Fourth Amendment is incidental at best.

Judge Pauley's opinion stands in stark contrast to Judge Leon's opinion.  In addition to the Fourth Amendment claim, Judge Pauley deflects the responsibility of the judicial branch to resolve the issue.  Certainly, the judiciary should decide the law, but "the question of whether that [NSA surveillance] program should be conducted is for the other two coordinate branches of Government to decide."  Moreover, Judge Pauley states that the "natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government’s bulk telephony metadata collection program," a balancing rejected by Judge Leon.  Given these substantial disagreements, the issue is certainly on its way to the Circuit Courts of Appeal, and possibly to the United States Supreme Court.

[image via]

 

Ohio Federal Judge Issues Permanent Injunction in Ohio Same-Sex Marriage Case

In an opinion today in Obergefell v. Kasich, federal Judge Timothy Black (pictured) of the Southern District of Ohio issued a permanent injunction against a particular enforcement of Ohio's limitation of marriage to opposite sex couples.

Recall that in July, less than a month after the United States Supreme Court's decision in United States v. Windsor declaring DOMA unconstitutional, Judge Black enjoined Ohio's DOMA-type provisions (both statutory and in the state constitution) involving the recognition of a marriage that occurred out of state in an especially sympathetic situation involving a dying person.

In today's opinion, Judge Black - - - as he did in his previous opinion and as Judge Robert Shelby did in his opinion declaring Utah's ban on same-sex marriage unconstitutional - - - used Justice Scalia's dissent in Windsor as support:

In a vigorous dissent to the Windsor ruling, Justice Scalia predicted that the question whether states could refuse to recognize other states’ same-sex marriages would come quickly, and that the majority’s opinion spelled defeat for any state’s refusal to recognize same-sex marriages authorized by a co-equal state. As Justice Scalia predicted: “no one should be fooled [by this decision] ... the majority arms well any challenger to a state law restricting marriage to its traditional definition ... it’s just a matter of listening and waiting for the other shoe [to drop].” Windsor, 133 S. Ct. at 2710 (Scalia, J., dissenting).

The challenge before Judge Black is an as-applied-one relating to a specific couple, a death certificate, and an out of state marriage.

On the due process challenge, Judge Black concluded that "Ohio’s refusal to recognize same-sex marriages performed in other states violates the substantive due process rights of the parties to those marriages because it deprives them of their significant liberty interest in remaining married absent a sufficient articulated state interest for doing so or any due process procedural protection whatsoever."

On the equal protection challenge, Judge Black used a Carolene-type analysis to conclude that sexual orientation classifications merited heightened scrutiny.  However, he also decided that the Ohio marriage ban failed to satisfy even rational basis, both because animus was not a legitimate interest and because the non-animus legitimate interests asserted had no rational connection to Ohio's marriage recognition ban of same-sex couples. 

Although the final injunction is limited to this particular couple and relates to the death of one of the partners, its reasoning could undoubtedly apply in a facial challenge.

 

DNI Releases State Secret Declarations

The Director of National Intelligence this weekend released previously classified DNI and NSA declarations in support of the government's assertions of the state secrets privilege in litigation challenge the TSP program.  We posted on the government's assertion of the state secrets privilege in Jewel v. NSA here.

The cases, Jewel v. NSA and In re National Security Agency Telecommunications Record Litigation, both in the Northern District of California, challenged the NSA's "dragnet" surveillance program.  The declarations say that no such program exists, and that to defend the cases would reveal national security secrets.  

SDS

Spitzer Compares Bush and Obama

Robert J. Spitzer (SUNY Cortland) recently posted perhaps the most recent comparison of assertions of executive power in the Bush and Obama presidencies coming out of the political science world: Comparing the Constitutional Presidencies of George W. Bush and Barack Obama: War Powers, Signing Statements, Vetoes.  As the title suggests, Spitzer compares the presidencies just in three dimensions.  But his piece also briefly summarizes the political science literature comparing other dimensions.  Here's Spitzer . . .

On war powers:

Nevertheless, in constitutional terms, Bush had the congressional authorization he needed [for the Iraq war]; Obama did not [for Libya].  Ironically, the grotesque scale of, and web of deception surrounding, the Iraqi war suggest that its precedential value for future presidents may be limited, whereas the presidential consequences of Obama's actions--another instance of an intervention without congressional approval, and the first instance of violation of the 60 day limit [in the War Powers Act]--are more likely to encourage future presidents tempted to engage in unilateral military actions.

On signing statements:

Presidents surely have interpretive latitude, especially when legislative language is vague or ambiguous, and therefore open to interpretation.  This is nothing new. . . .  What presidents may not do, Bush's unitary executive theory notwithstanding, is to rewrite legislation at the point at which a bill is presented for signature through signing statement in what some have called a de facto item veto.  As James Pfiffner concluded, "Bush's systematic and expansive use of signing statements constitutes a direct threat to the separation of powers system in the United States."  Obama has, to date, skirted, if not walked away from, this ambition, especially after the criticism of his 2009 signing statement of P.L 111-8 [directing that legislation that calls for congressional committee approval of spending decisions by federal agencies is to be treated as "advisory" and "not . . . dependent" on committee approval].  Contrary to the claim of some that Obama has assumed the mantle of a unitary president, his signing statement use to date has been comparable to, or less than that of any predecessor from Reagan on.  And Bush II's signing statement use continues to keep him in a class by himself.

On protective return pocket vetoes:

Unlike the other powers discussed in this paper, the Bush and Obama protective returns were nearly identical in form, and both appeared to arise from the bowels of the "deep structure" of the executive bureaucracy rather than from top political aides seeking to expand executive authority.  Here is one of the most important, if underappreciated, aspects of executive power accretion: secular bureaucratic power incrementalism.  A day may come where a constitutional challenge or political flare-up may drag the protective return pocket veto into the intense lights of the legal or political stage, and where a full airing, and final disposition, of this arcane executive power grab may be vetted and resolved.  Absent such a moment, however, the executive's "deep structure" will continue to advance the protective return for every subsequent chief executive.

Utah Federal District Judge Declares State's Same-Sex Marriage Ban Unconstitutional

In his  opinion in Kitchen v. Herbert, federal district judge Robert Shelby held

that Utah’s prohibition on same- sex marriage conflicts with the United States Constitution’s [Fourteenth Amendment] guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.

Notably, Utah has both a state statute and state constitutional amendment defining marriage as limited to "a man and a woman." 

The judge interestingly relied upon Justice Scalia's dissenting opinion in last term's decision in United States v. Windsor, which held §3 of DOMA unconstitutional:

The Constitution’s protection of the individual rights of gay and lesbian citizens is equally dispositive whether this protection requires a court to respect a state law, as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here. In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare . . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same- sex couples marital status.

133 S. Ct. at 2709 (citations and internal quotation marks omitted). The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.

Perhaps most controversially, Judge Shelby determines that marriage is a fundamental right and that restrictions on marriage merit strict scrutiny.  He further finds that there is no compelling governmental interest justifying the same-sex marriage restriction, unlike, for example, a regulation of the age at which a person may be married which is supported by the compelling state interest of "protecting children against abuse and coercion."

Judge Shelby's opinion on equal protection grounds is much less controversial, and perhaps even conservative.  Judge Shelby rejects the arguments - - - or at least the need for the arguments - - - regarding any sort of heightened scrutiny and resolves the case on rational basis review.  This rejection includes the arguments centering on animus as a non-legitimate state interest.  Instead, he concludes that the legitimate government interests that Utah cites are not rationally related to Utah’s prohibition of same-sex marriage.  These interests include the by now familiar ones of "responsible procreation," "optimal child-rearing,"  "proceeding with caution," and "preserving the traditional definition of marriage."

He ends with an extended analogy to Loving v. Virginia,  or more specifically, Virginia's arguments in the landmark case ruling the state's anti-miscengation law unconstitutional.  And after clearing declaring sections 30-1-2 and 30-1-4.1 of the Utah Code and Article I, § 29 of the Utah Constitution unconstitutional under the Fourteenth Amendment, enjoins their enforcement.

 

Catharine MacKinnon Awarded Ruth Bader Ginsburg Award for Lifetime Achievement from AALS Section on Women in Legal Education

Professor Catharine MacKinnon, author of the books Feminism Unmodified and Toward a Feminist Theory of the State, as well as Are Women Human? has been announced as the recipient of the Ruth Bader Ginsburg Lifetime Achievement Award.  There will be an event January 3, 2014 at the AALS Conference in NYC .

 

 

More from Feminist Law Professors here.

For those unfamilar with MacKinnon's recent work, this video from a 2011 talk at U Chicago Law School "Trafficking, Prostitution and Inequality" provides a good introduction.

 

 

Supreme Court of Canada Finds Prostitution Laws Unconstitutional

In its highly anticipated judgment in Canada v. Bedford, the Supreme Court of Canada has unanimously declared several provisions of Canada's criminal code regulating prostitution and sex work to be inconsistent with the Canadian Constitution's Charter of Rights and thus unconstitutional, although it suspended the declaration of invalidity for one year to allow Parliament to act. 

The provisions of the criminal code at issue were:

• § 210 making it an offence to keep or be in a bawdy‑house;
• § 212(1)(j) prohibiting living on the avails of prostitution; and,
• §213(1)(c) prohibiting communicating in public for the purposes of prostitution. 

All there were declared inconsistent with §7 of the Charter which provides "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."  The Court was clear that it was security - - - and not liberty - - - that was the animating principle for its decision.

Importantly, prostitution itself is legal in Canada, an important underpinning of the Court's decision.  The Court reasoned that the criminal code provisions at issue heightened the risks prostitutes face, by not merely "imposing conditions" but also going "a critical step further by imposing dangerous conditions on prostitution" and prevent "people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks."  

The Court rejected the notion that the created danger was "negated by the actions of third‑party johns and pimps, or prostitutes’ so‑called choice to engage in prostitution."   

The Court then engaged in a type of purpose, means, and balancing analysis familiar in constitutional law. Quoting from the Court's handy summary of its reasoning and holding in this lengthy and scholarly opinion,

[First], the negative impact of the bawdy‑house prohibition (s. 210) on the applicants’ security of the person is grossly disproportionate to its objective of preventing public nuisance.  The harms to prostitutes identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption.  Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. 

Second, the purpose of the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps and the parasitic, exploitative conduct in which they engage.  The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards.  It also includes anyone involved in business with a prostitute, such as accountants or receptionists.  In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes.  The living on the avails provision is consequently overbroad. 

Third, the purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause.  The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.

 The Supreme Court of Canada's unanimous opinion affirms a judgment by the Court of Appeal for Ontario and one might believe that Canada's remaining criminalization of sex work have been vanquished.  However, the Court recognized that the "regulation of prostitution is a complex and delicate matter," and that Parliament "should it choose to do so" could "devise a new approach, reflecting different elements of the existing regime."   The Court suspended its declaration of invalidity for one year.  And one might say that the "ball" is now in Parliament's "court." 

[image: Canada Supreme Court building's Grand Entrance Hall via]

Uganda Parliament Passes Anti-Homosexuality Bill - - - and Anti Pornography Bill

The anti-homosexuality bill has been before the Uganda Parliament for several years.  For background - - - including discussions of the links between the bill and US evangelicals- - - both Jeff Sharlett's 2010 Harper's Magazine article  Straight Man’s Burden: The American roots of Uganda’s anti-gay persecutions  and the documentary film God Loves Uganda   are worth consideration. 

 

The original "Anti Homosexuality Bill" Bill 18 2009, seems to have been amended by various motions, according to Parliament Watch (Uganda).  These amendments include:

The death penalty was removed from the Bill during the debate, and the death penalty was replaced with life imprisonment.

• Clause 14 Failure to disclose the offense was deleted because the clause will be too hard to implement
• Clause 12 was amended,a new clause inserted that sentences any person or institution that conducts gay marriage to 7yrs and licence canceled
• Clause 9(b) the words"either in Uganda or elsewhere"or" appearing at the end of the end of the sub- clauses 1(a) (b)were deleted
• Clause 9 was amended by deleting the words "etc " in the head note, because it makes the head note appear vague
• Clause 8 Conspiracy to engage in homosexuality, was deleted because it is provided for under clause 13
• Clause 7 : Aiding and abettting Homosexuality was deleted, because it provided for under clause 13

An official copy of the bill is not yet available.  It must be presented to the President of Uganda for assent.

Additionally, yesterday the Uganda Parliament passed The Anti Pornography Bill creating the offense of pornography.  As defined, it includes "any indecent act or behavior tending to corrupt morals."

Should there be Presidential assent and the bills become law, there are vows to challenge the constitutionality of both laws in the courts. 

State Action in the News (Again) . . . Or "Duck Dynasty"

In case you never heard of Duck Dynasty, here's the Wikipedia scoop:

Duck Dynasty is an American reality television series on A&E. It shows the lives of the Robertson family, who became wealthy from their family-operated business, Duck Commander, operated in West Monroe, Louisiana, which makes products for duck hunters, primarily the duck call named Duck Commander. The Robertson men, brothers Phil, Si, and Phil's sons Jase, Willie, and Jep, are known for their long beards. The business began in a family shed, where Phil Robertson spent 25 years making duck calls from Louisiana cedar trees. His son Willie is now the CEO of the company. The family was previously featured on the series Benelli Presents Duck Commander and its spin-off Buck Commander, which still airs on the Outdoor Channel.
The show has broken several ratings records on both A&E and cable television as a whole; the fourth season premiere drew 11.8 million viewers, the most-watched nonfiction cable telecast in history.

But the show's popularity is in jeopardy, because the very popular patriarch of the show, Phil Robertson, gave a very unpopular interview with GQ and A&E has "suspended" him from the show.

The constitutional doctrine of "state action" comes into play because some - - - including Louisiana Governor Bobby Jindhal - - - are discussing the suspension as a First Amendment issue.  A&E, to again make use of Wikipedia, is a cable and satellite television station that is "a joint venture between the Hearst Corporation and Disney–ABC Television Group."

Of course, the text of the First Amendment begins "Congress shall make no law" and it is incorporated to the states through the due process clause of the Fourteenth Amendment, beiginning "No State Shall," thus textually expressing the doctrine of state action.  It is not that nongovernmental entities are never subject to the First Amendment as shown by the classic case of Marsh v. Alabama decided by the United States Supreme Court in 1946 and involving the "company town" of Chickasaw.  The Court there rejected the claim by Gulf Shipbuilding Corporation that it "owned" the town and could therefore prohibit the distribution of literature by Jehovah's Witnesses.  There are subsequent cases in which the Court has held that a quasi-private entity is subject to constitutional contraints based on a number of factors. (Law students needing a quick refresher might enjoy a CALI Lesson on state action.)

But in the case of A&E, there is little, if any, support for a finding that A&E could be fairly called a governmental actor and thus the First Amendment is simply inapplicable.

And the First Amendment will also have little, if anything, to do with A&E's decisions about the series entering its fifth season:

 

 

 

New Mexico Supreme Court Declares Same-Sex Marriage Cannot Constitutionally be Barred

In its unanimous opinion in Griego v. Oliver, the New Mexico Supreme Court has declared that the state must recognize same sex marriages.  The court found that

barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution. We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.

Justices of the New Mexico Supreme Court: 

From left to right: Richard C. Bosson; Charles W. Daniels; Chief Justice Petra Jimenez Maes (seated in middle);  Barbara J. Vigil;  Edward L. Chavez (author of opinion).     

Interestingly, the court concluded that any prohibition of same-sex marriage raised a classification based on sexual orientation (and not sex), although its rationale raised the specter of the kind of formal equality at issue in Plessy v. Ferguson:

We do not agree that the marriage statutes at issue create a classification based on sex. Plaintiffs have conflated sex and sexual orientation. The distinction between same- gender and opposite-gender couples in the challenged legislation does not result in the unequal treatment of men and women. On the contrary, persons of either gender are treated equally in that they are each permitted to marry only a person of the opposite gender. The classification at issue is more properly analyzed as differential treatment based upon a person’s sexual orientation.

Nevertheless, the court found that the appropriate level of scrutiny was intermediate:

 because the LGBT community is a discrete group that has been subjected to a history of purposeful discrimination, and it has not had sufficient political strength to protect itself from such discrimination. . . .  the class adversely affected by the legislation does not need to be “completely politically powerless, but must be limited in its political power or ability to advocate within the political system.”  Nor does intermediate scrutiny require the same level of extraordinary protection from the majoritarian political process that strict scrutiny demands. It is appropriate for our courts to apply intermediate scrutiny, “even though the darkest period of discrimination may have passed for a historically maligned group.” 

The court notes that its "decision to apply intermediate scrutiny is consistent with many jurisdictions which have considered the issue," citing the Second Circuit in Windsor, as well as the same-sex marriage cases from Iowa and Connecticut.

The court found that the same-sex marriage ban did not survive intermediate scrutiny.  It considered three  governmental interests advanced for prohibiting same-gender couples from marrying in the State of New Mexico:

• promoting responsible procreation
• responsible child-rearing
• preventing the deinstitutionalization of marriage

As to the last interest, the court noted that the defendants conceded there was no evidence that same-sex marriages would result in the deinstitutionalization of marriage, and the court implied this interest was "intended to inject into the analysis moral disapprobation of homosexual activity and tradition" and flatly rejected it. 

As to procreation and child-rearing, the court rejected these interests as the governmental interests underlying New Mexico's marriage laws: "It is the marriage partners’ exclusive and permanent commitment to one another and the State’s interest in their stable relationship that are indispensable requisites of a civil marriage."  But the court also found that neither interest would be substantially served by the prohibition of mariage to same-sex partners.

Thus, by a relatively brief opinion (approximately 30 pages) the New Mexico Supreme Court has unanimously ruled that same-sex marriages must be allowed in the state.  Because the decision rests on the state constitution, it is not subject to review by the United States Supreme Court and   New Mexico becomes the 17th state to allow same-sex marriages on the same terms as other marriages.

 

Daily Read: Originalism and the Good Constitution

In their defense of originalism, Originalism and the Good Constitution (Harvard U Press 2013),  John McGinnis and Michael Rappaport emphasize the "supermajoritarian" nature of the US Constitution. 

For many, any "supermajoritarian" thesis is defective given the composition of those considered within the polis at the time of the drafting of the Constitution.  McGinnis and Rappaport take this on.  As they write in their article with the same name of their book, published in Georgetown Law Journal in 2010, the "exclusion of most African-Americans from the constitutional enactment process was an enormous failure of the supermajoritarian process."  But, they argue, "this failure was corrected through the enactment of the Reconstruction Amendments," or even if not "fully resolved," the Reconstruction Amendments "came close enough to render further judicial correction inadvisable." 

As for women of all races, they recognize that this was also a "serious defect."  But again, this problem has been substantially corrected: "In 1920, the nation passed another supermajoritarian correction to a supermajoritarian failure: the Nineteenth Amendment guaranteed women the right to vote, assuring that women from that time forward could fully participate in the constitutional amendment process."

Here's more discussion over at LibertyLaw.

Recommendations from President's NSA Surveillance Review Group

The anticipated report  from a panel of presidential advisors - - - Richard Clarke, Michael Morell, Peter Swire, and ConLawProfs Geoffrey Stone and Cass Sunstein - - -  has just been released from The White House.  It contains 46 recommendations, detailed in the Executive Summary and later discussed in the report.

Occuring amidst significant problems, such as the recent federal district judge's opinion casting doubt on the constitutionality of the  collection of metadata from Verizon and the Edward Snowden revelations, the report concludes that the "current storage by the government of bulk meta-data creates potential risks to public trust, personal privacy, and civil liberty."  But the report recognizes that government might need such metadata, and therefore recommends that it be held by "private providers or by a private third party."   The report also recommends a series of changes at NSA, including having the Director be a "Senate-confirmed position" and suggesting that the Director be a civilian (at least next time). 

There is some interesting constitutional analysis and rhetoric in the report.  For example, under "Principles," the first one is "The United States Government must protect, at once, two different forms of security: national security and personal privacy."  How should these interests be balanced?  The report, quite interestingly, says this:

It is tempting to suggest that the underlying goal is to achieve the right “balance” between the two forms of security. The suggestion has an important element of truth. Some tradeoffs are inevitable; we shall explore the question of balance in some detail. But in critical respects, the suggestion is inadequate and misleading.

Some safeguards are not subject to balancing at all. In a free society, public officials should never engage in surveillance in order to punish their political enemies; to restrict freedom of speech or religion; to suppress legitimate criticism and dissent; to help their preferred companies or industries; to provide domestic companies with an unfair competitive advantage; or to benefit or burden members of groups defined in terms of religion, ethnicity, race, or gender. These prohibitions are foundational, and they apply both inside and outside our territorial borders.

The purposes of surveillance must be legitimate. If they are not, no amount of “balancing” can justify surveillance. For this reason, it is exceptionally important to create explicit prohibitions and safeguards, designed to reduce the risk that surveillance will ever be undertaken for illegitimate ends.

Certainly, there is much more to glean and analyze from the 300 plus page report, but some of the reasoning already seems noteworthy.

Federal District Judge Grants Preliminary Injunction Against NSA Surveillance of Telephone Metadata

In his opinion in Klayman v. Obama, federal district judge (DDC) Richard Leon has granted a preliminary injunction against NSA surveillance of telephone metadata.  Judge Leon stayed the injunction "in light of the signficant national security interests at stake and the novelty of the constitutional issues."  And the preliminary injunction is limited to Larry Klayman and Charles Strange, barring the federal government from "collecting, as part of the NSA's Bulk Telephony Metadata Program, any telephony metadata associated with their personal Verizon accounts" and requiring the government to destroy any previously collected metadata. 

The "background" section of Judge Leon's opinion starts by specifically mentioning the "leaks" (his quotations) of classified material from Edward Snowden revealing the government's Verizon surveillance.   He then has an excellent discussion of the facts, statutory frameworks, and judicial review by the FISC (Foreign Intelligence Surveillance Court) [which others have called the FISA Court].

Judge Leon concluded that he did not have jurisdiction under the APA (Administrative Procedure Act), but that the plaintiffs did have standing to raise a constitutional claim under the Fourth Amendment.  On the substantial likelihood to prevail on the merits necessary for success on the preliminary injunction, Judge Leon ruled - - - importantly - - - that the collection of metadata did constitute a search.   Judge Leon also concluded that the collection of the metadata did violate a reasonable exepectation of privacy.   Judge Leon noted that technological changes have made the rationales of Supreme Court precedent difficult to apply, so that cases decided before the rise of cell phones cannot operate as a precedential "North Star" to "navigate these uncharted Fourth Amendment waters."  

Having found there was a search that invaded a reasonable expectation of privacy, Judge Leon then concluded that the search was unreasonable.  Important to this finding was the efficacy prong of the analysis - - - or in this case, the inefficacy prong.  Judge Leon noted that the "Government does not cite a single instance in which the analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature." (emphasis in original).

Judge Leon acknowledged that some other judges have disagreed with his conclusions, and that the matter is far from clear, but he stated:

I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' that this systemtaic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and anlyzing it without prior judicial approval.

As the above makes clear, it is not only the Fourth Amendment that Judge Leon feels has been violated, but the role of Article III courts in the constitutional separation of powers scheme.

 

 

Federal District Judge Finds Portions of Utah's Criminalization of Polygamy Unconstitutional

In a 91 page  opinion  in Brown v. Buhman,  federal district judge Clark Waddoups has concluded that Utah's anti-bigamy statute is partially unconstitutional. 

The statute, Utah Code Ann. § 76-7-101, provides:

•             (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
•             (2) Bigamy is a felony of the third degree.
•             (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.

The challengers to the statute, the Browns, are famous from the reality program Sister Wives and the accompanying book ) and are represented by Professor  Jonathan Turley,  who blogs about the case here.

The judge's scholarly opinion includes a discussion of Edward Said's groundbreaking book Orientalism as a critique of the well-known passage in the United States Supreme Court’s 1879 decision in Reynolds v. United States upholding the criminalization of polygamy by reasoning, in part, that "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people."

Judge Waddoups considers both the due process challenge (applying Washington v. Glucksberg) and the free exercise challenge (applying Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah). 

In the due process analysis, the judge specifically found

 there is no “fundamental right” to polygamy under Glucksberg. To phrase it with a “careful description” of the asserted right [citations omitted],  no “fundamental right” exists to have official State recognition or legitimation of individuals’ “purported” polygamous marriages—relationships entered into knowing that one of the parties to such a plural marriage is already legally married in the eyes of the State. The fundamental right or liberty interest that was under consideration in Glucksberg is instructive for the analysis of whether the asserted right to polygamy is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”

The judge also found that the criminalization of what it called the "religious cohabitation" portion of the statute did not rise to the level of a fundamental right, extensively discussing Lawrence v. Texas and the Tenth Circuit's limiting interpretation of Lawrence. 

However, the judge did find that "the cohabitation prong does not survive rational basis review under the substantive due process analysis."  This analysis implicitly imported a type of equal protection analysis, with the judge concluding:

Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.

Complementing this conclusion regarding discriminatory enforcement, the judge's free exercise of religion analysis concludes that while the Utah statute may be facially neutral, the cohabitation prong is not "operationally neutral" and not of general applicability.  The judge therefore applied strict scrutiny to the cohabitation prong and easily concluded the statute failed.

As an alternative free exercise analysis, the judge reasoned that the cohabitation prong also merited strict scrutiny because it involved a "hybrid rights" analysis under Employment Division, Department of Human Resources of Oregon v. Smith (1990), given the claims of due process, but also claims that the judge did not extensively analyzes such as free association, free speech, establishment, and equal protection.  

Thus, the judge concluded the cohabitation prong of the statute is "unconstitutional on numerous grounds."  However, the court explicitly narrowed the constructions of  “marry” and “purports to marry" in the statute, so that the Utah statute continues to "remain in force as prohibiting bigamy in the literal sense—the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage."  Not surprisingly then, the judge's opinion does not cite the Supreme Court's opinion last term in United States v. Windsor involving DOMA and same-sex marriage, in which Justice Scalia, dissenting, invoked the effect the decision would have on polygamy. [I've previously discussed the similarities of same-sex marriage and polygamy claims here].

Given the district judge's narrowing construction and the clear constitutional issues with the Utah statute's breadth, it might be possible that the state does not appeal.

 

[video via]

Court Dismisses Rangel's Censure Case

Judge John D. Bates (D.D.C.) earlier this week dismissed Rep. Charles Rangel's suit against House Speaker John Boehner and others growing out of Rangel's censure in 2010 for a variety of improprieties.

Rangel sued Boehner and others after politico.com posted a memo purportedly written by the chief counsel of the House Ethics Committee.  Rangel argued that that memo undermined the integrity of his censure proceeding--so much so that he had a cause of action.

The defendants moved to dismiss the case, arguing that Rangel lacked standing, the case raised a political question, the defendants enjoyed immunity from suit under the Speech and Debate Clause, Rangel's complaint failed to state a claim upon which relief could be granted, and even if the court had jurisdiction it should exercise its discretion not to reach the merits.

Judge Bates agreed.  He concluded that Rangel lacked standing based on injury to his reputation (causation was too attenuated), his loss of status on the House Ways and Means Committee (again, no causation, because the Democrats lost seats on the Committee after the 2010 election, and it wasn't clear that Rangel's censure caused him to lose a subcommittee seat), the political exploitation of his censure by a primary opponent (because that's not an injury), or a due process injury (again, no injury).

Judge Bates also concluded that Rangel's claims were political questions, and that each defendant is immune under the Speech or Debate Clause.