Constitutional Law Prof Blog

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Federal District Judge Finds Town Ordinance Prohibiting Day Labor Solicitation Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his opinion in Centro de La Comunidad Hispana de Locust Valley v. Town of Oyster Bay, United States District Judge Dennis Hurley held the town's ordinance prohibiting day labor solicitation unconstitutional under the First Amendment. 

The ordinance, Chapter 205-32 of the Code of the Town of Oyster Bay, sought to prohibit "any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle," and to similarly prohibit "the operator of any motor vehicle utilizing a public right-of-way within the Town of Oyster Bay to stop or stand within or adjacent to said public right-of-way or any area designated as either a traffic lane or a no-standing or no-stopping zone for the purpose of soliciting employment or accepting a solicitation of employment from a pedestrian."

Masonry circa 1425 via

After first discussing preliminary matters including standing, Judge Hurley's description of the parties' arguments offers a good illustration of the types of doctrinal choices available under the First Amendment:

Plaintiffs maintain that the Ordinance must be stricken as violative of the First Amendment. First, it is a content-based enactment, presumptively unconstitutional and not justified as narrowly tailored to serve a compelling state interest. Second, if viewed as a “time, place or manner restriction” and not content- based, it is not narrowly tailored to serve “legitimate, content-neutral interest.” Third, even if viewed as restricting purely commercial speech, it is not narrowly tailored.

Defendants offer several arguments in response. First, the Ordinance does not affect expressive speech; rather, it regulates conduct. Second, day labor solicitation is commercial speech. As such, it is entitled to no protection because it relates to illegal activity; alternatively, the ordinance is a constitutional restriction of commercial speech. Finally, to the extent it is viewed as a time, place or manner restriction, it is narrowly tailored.

 Judge Hurley decided that the ordinance was a content-based regulation of commercial speech.  He thus applied the well-established four prong Central Hudson test, Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York (1980), as "adjusted" by Sorrell v. IMS Health Inc. (2011).

In deciding that the ordinance was content-based, Judge Hurley quoted the Court's recent decision in Reed v. Town of Gilbert (2015), including the passage that regarding the "commonsense" meaning of the phrase.  Here, Judge Hurley noted, to enforce the ordinance the Town authorities would have to "examine the content of the message conveyed."

Not surprisingly then, Judge Hurley found that the ordinance failed the fourth prong of Central Hudson - - - “whether the regulation is more extensive that necessary to serve the governmental interest” - - - given that the content-based restriction should be "narrowly tailored" and that there were "less speech-restrictive alternatives available."  He wrote:

Because of its breath, the ordinance prohibits speech and conduct of an expressive nature that does not pose a threat to safety on the Town’s streets and sidewalks. It reaches a lone person standing on the sidewalk, away from the curb, who attempts to make known to the occupants of vehicles his availability for work even if it does not result in a car stopping in traffic or double parking. It reaches children selling lemonade at the end of a neighbor’s driveway (which is, after all, “adjacent to” a public right of way), the veteran holding a sign on a sidewalk stating “will work for food,” and students standing on the side of a road advertising a school carwash. Even a person standing on the sidewalk holding a sign “looking for work - park at the curb if you are interested in hiring me” would violate the ordinance as it contains no specific intent element and no requirement that the “attempt to stop” result in traffic congestion, the obstruction of other Vehicles, or double parking. The Ordinance applies to all streets and roadways in the Town regardless of traffic flow and in the absence of any evidence that the traffic issues the Town relies on to support its interest exist elsewhere in the Town.

In support of this final observation, Judge Hurley quotes the Court's buffer-zone decision in McCullen v. Coakley (2014).

Interestingly, although Judge Hurley did not reach the Equal Protection challenge because he found the Ordinance unconstitutional under the the First Amendment, he provides a glimmer of the Equal Protection difficulty in the Town's position:

Nor is it any comfort that the Town’s safety officers will use their discretion, or be “trained” on how to determine whether a person is soliciting employment or attempting to stop a vehicle to solicit employment. Such discretion may surely invite discriminatory enforcement. . . . . Will safety officers be instructed and/or use their discretion to ignore the students advertising a school car wash and the child selling lemonade on the sidewalk and to ticket the group of Latino men standing on a corner near a home improvement store?

Moreover, he concludes that other ordinances are more than adequate to address the specific problem of traffic safety.

Judge Hurley's conclusion that the Oyster Bay day labor solicitation violates the First Amendment is similar to the Ninth Circuit's 2013 decision in Valle Del Sol Inc. v. Whiting that the Arizona day labor solicitation provision in SB1070 was unconstitutional.  Should the Town appeal, the Second Circuit would most likely find Valle Del Sol persuasive, especially since the Court's subsequent opinions provide even more support.

Connecticut Supremes Strike Extra-Judicial Regulation of Attorneys in Debt-Relief Business

Steven D. Schwinn, John Marshall Law School

The Connecticut Supreme Court ruled that state regulation of attorneys who offer certain debt-relief services to clients violates state constitutional separation of powers principles. The ruling is quite limited, however, and does not extend to attorneys who set up a sham shop as a cover for a distinct debt-relief operation. (The ruling keeps the regulatory scheme on the books; it simply says that it can't apply to certain actual attorneys doing actual legal work.)

The ruling means that Connecticut attorneys who are really practicing law (but also providing debt-relief services) cannot be regulated outside the judiciary, but attorneys who are simply providing cover for debt-relief operations (without really practicing law) can be.

The case tested a Connecticut law that authorizes the state Banking Commissioner to license and regulate persons engaged in the debt negotiation business. Attorneys in this line of work are not exempt, except those who are "admitted to the practice of law in [Connecticut] who [engage] or [offer] to engage in debt negotiation as an ancillary matter to such [attorneys'] representation of a client . . . ."

A Connecticut law firm that enters into retainer agreements for legal services and an attorney-client relationship with clients, but also provides debt-relief counseling, challenged the licensing and regulation scheme on the ground that it's the courts, not the legislature, that regulate an attorney's law practice in Connecticut. The firm claimed that the Commissioner's attempts to regulate it intruded into the role of the judiciary and thus violated state constitutional separation of powers.

The court agreed. (Like many states, Connecticut has an explicit clause on separation of powers. Connecticut's says, "The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. . . .")

The court also emphasized, however, that a presumption that an attorney is practicing law (and not subject to Commissioner regulation) can be overcome where "the Connecticut attorney has failed to (1) exercise meaningful oversight over debt negotiation staff, (2) provide any genuine legal advice or other legal services, and/or (3) maintain a bona fide attorney-client relationship with the client." The court also reminded the Office of Chief Disciplinary Counsel of its "duty to regulate lawyers when they are acting as debt negotiators," and urged it "to monitor vigilantly their activities and fees in this area of practice."

Seventh Circuit Strikes Partisan Balance Statute in Judicial Elections

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit this week struck an Indiana law election law that ensured "partisan balance" on the Marion Superior Court, in Marion County. Curiously (and tellingly), the law only applied to judicial elections in Marion County (the home of Indianapolis); more regular judicial election rules (or, in two counties, merit selection) applied in the rest of the state.

Here's how it worked. Each major party conducted a primary election in which each party selected a number of candidates that equaled half the open seats on the court in the general election. (If there were 16 open seats, the Republicans would put up 8 candidates, and the Dems would put up 8.) Then, in the general election, all primary winners would win a seat. The system virtually ensured an equal divide among the judges on the court. ("Virtually," because there was a remote chance that a minor-party candidate or independent could get elected.)

Common Cause challenged the law, arguing that it infringed on the right to vote. (What good is your vote in the general, if you can't select among competing candidates?) The court agreed.

The court applied the Burdick/Anderson balancing test and ruled that the infringement on the right to vote outweighed the state's interests. On the infringement side of the balance, the court simply noted that the system denied voters any choice in the general election--a "severe" burden on the right to vote:

the Statute removes electoral choice and denies voters any effective voice or ability to choose between candidates of the two major parties. In fact, absent a possible third party or independent candidate on the ballot [a remote chance, by the way--ed.], the general election is guaranteed to be uncontested, rendering any vote meaningless because there is no choice to be made.

On the state's interests side of the balance, the court rejected the claimed interest in ensuring fair political representation and impartiality, because that interest doesn't really apply to judicial elections (where judges make independent decisions in their own independent courtrooms, not like a legislature, where the body makes a decision as a whole), and because the state had other ways of achieving this interest (by enforcing standards of judicial conduct, e.g.). The court said that the state's interests in saving money and ensuring stability and public confidence could be achieved in other ways, too, and that in any event they were outweighed by the severe restriction on the right to vote.

The ruling means that the state needs to come up with a different way to elect Marion County judges before the next election (in 2018). The ruling is a victory for the right to vote, but it's a victory for judicial independence, too, given that this strange system applied only to Marion County, suggesting a legislative power-play against the court system in the state's capital and largest city.

The state hasn't said whether it will seek en banc review or cert.

Ninth Circuit Rejects Equal Protection and Due Process Challenges to California Sexual Predator Statute

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Taylor v. San Diego County today, a panel of the Ninth Circuit rejected constitutional challenges to indefinite detention as a "sexually violent predator" raised in a habeas petition governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

"Lunatic Asylum" circa 1831 via

The court's equal protection analysis was essentially that "sexually violent predators" are "not similarly situated" to other civilly committed offenders.  "California’s expressed legislative policy is to protect the public from the increased danger posed by sexually violent predators," and thus indefinite detention, rather than one year renewable periods of detention do not offend equal protection. 

Additionally, the court found that there was no due process problem with the California statute's requirement that the person (not the state) bears the burden of proving, by a preponderance of the evidence, that he no longer meets the definition of a sexually violent predator. 

The opinion is another example of the federal courts giving wide latitude to state civil commitment of sexual offenders.

District Judge Says House of Representative Challenge to ACA Can Go Forward (in part)

Steven D. Schwinn, John Marshall Law School

Judge Rosemary Collyer (D.D.C.) ruled today that the U.S. House of Representatives has standing to pursue its claim that the administration spent money on a portion of the Affordable Care Act without a valid congressional appropriation. But at the same time, Judge Collyer ruled that the House lacked standing to sue for an administration decision to delay the time when employers have to provide minimum health insurance to their employees.

The split ruling means that the House's case against the administration for spending unappropriated funds can go forward, while the case for extending the time for the employer mandate cannot.

But Judge Collyer's ruling is certainly not the last word on this case. The government will undoubtedly appeal.

And just to be clear: this is not a ruling on the merits. It only says that a part of the case can go forward.

The case arose when the House authorized the Speaker to file suit in federal court against HHS Secretary Burwell and Treasury Secretary Lew for spending money on an ACA program without an appropriation and for unilaterally extending the statutory time for employers to comply with the employer mandate.

As to the spending claim, the House said that a provision of the ACA, Section 1402, which authorizes federal reimbursements to insurance companies for reducing the cost of insurance to certain eligible beneficiaries (as required by the ACA), never received a valid appropriation. That is, Congress never funded the provision. That's a problem, the House said, because Article I, Section 9, Clause 7 of the Constitution says that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . ." In short, the administration's funding of Section 1402 violated the Constitution.

As to the employer mandate claim, the House said that the administration pushed back the employer mandate beyond December 31, 2013, the date set in the ACA, without congressional authorization. (The House couched this in constitutional terms, but, as Judge Collyer wrote, it's really essentially a statutory claim.)

The Secretaries filed a motion to dismiss for lack of standing.

Judge Collyer denied the motion as to the appropriations theory, but granted it as to the employer mandate claim. According to Judge Collyer, the House could show an institutional harm from the administration's use of non-appropriated funds (because the Constitution itself specifies a role in appropriations for the Congress, which the House said that the administration ignored here, and because the claim isn't about the administration's execution of law). But at the same time she wrote that the House couldn't show a particular institutional harm for the administration's push-back for the employer mandate (because this claim was all about the administration's execution of the law--a role reserved under the Constitution to the executive). She explained:

Distilled to their essences, the Non-Appropriation Theory alleges that the Executive was unfaithful to the Constitution, while the Employer-Mandate Theory alleges that the Executive was unfaithful to a statute, the ACA. That is a critical distinction, inasmuch as the Court finds that the House has standing to assert the first but not the second.

As to the employer mandate claim, she said,

The [House's] argument proves too much. If it were accepted, every instance of an extra-statutory action by an Executive officer might constitute a cognizable constitutional violation, redressable by Congress through a lawsuit. Such a conclusion would contradict decades of administrative law and precedent, in which courts have guarded against "the specter of 'general legislative standing' based upon claims that the Executive Branch is misinterpreting a statute or the Constitution."

We'll watch this case on appeal.

 

Seventh Circuit (again, and again) Upholds Contraception Accommodation

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit yet again upheld the ACA's accommodation to the contraception mandate for religious non-profits against a RFRA challenge. The decision last week in Grace Schools v. Burwell reversed a lower court's ruling that the challengers were likely to succeed on the merits. But the Seventh Circuit also kept the lower court's injunction in place for 60 days in order to allow the lower court to consider additional arguments made by the plaintiffs but not addressed in the appeal (a First Amendment claim and an Administrative Procedures Act claim). (These claims probably have even less traction than the RFRA claim.)

The ruling says that the government's accommodation to the contraception mandate for religious non-profits doesn't violate the RFRA. This is consistent with the rulings of every other circuit that's addressed the question.

Recall that the accommodation now allows a religious non-profit that objects to the contraception mandate either to complete a government form or to simply inform the government that it has a religious objection to the mandate. If so, the government then informs the non-profit's health insurer or third-party administrator that the insurer or TPA has to provide contraception directly to the non-profit's employees and students free of charge. (Insurers are happy to do this, by the way, because contraception coverage is cheaper for an insurer than not including contraception as part of an insurance package.)

Non-profits have sued, arguing (curiously) that the accommodation itself violates their religious freedom, because it makes them complicit in the provision of contraception. ("But for" their certification, they say, their insurers or TPAs wouldn't be required to provide contraception. Moreover, they claim a religious objection to doing business with insurers or TPAs who provide contraception to their employees, even if required by the government.)

This case zeroed in on the substantial burden requirement in RFRA. (In order to trigger RFRA's strict scrutiny, a government action must first create a substantial burden to a religious practice.) The challengers argued that the accommodation created a substantial burden on their religious practice (for the reasons mentioned above)--and that they, not the courts, got the final word on whether the accommodation was a substantial burden. (They claimed that Hobby Lobby said this.) This was the really important question in the case: Who gets to say whether a government action, as a legal matter, creates a substantial burden?

The Seventh Circuit panel flatly rejected the plaintiffs' arguments. The majority said what every other circuit has said: contraception is triggered by government regulation, not by the non-profit's exercise of the accommodation--and, importantly, that the courts, not the challengers, get to interpret how the law operates. Because there was no substantial burden, the majority didn't reach the question whether the accommodation satisfied RFRA's strict scrutiny.

Judge Manion dissented sharply, arguing that the majority misinterpreted the law and misunderstood how the accommodation actually worked. Judge Manion also argued that the accommodation failed strict scrutiny.

This case follows closely on a decision last week by the Tenth Circuit to deny en banc review of a panel's decision upholding the accommodation. That decision also came with a sharp dissent. It also follows the Seventh Circuit's own ruling in Notre Dame II, also (again) upholding the accommodation.

Third Circuit Finds Teacher's Blog Comments About Students Not Protected By First Amendment Issue

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Munroe v. Central Bucks School District, a divided panel of the Third Circuit found that a public school teacher's blog posts about students did not "rise to the level of constitutionally protected expression" under the First Amendment and thus they could be the basis of her termination.  Agreeing with the district judge, the majority thus concluded that the balancing test of  Pickering v. Board of Education (1968) was not satisfied.

The majority's opinion, authored by Judge Robert Cowen and joined by Judge Jane A. Restani of the United States Court of International Trade, sitting by designation, details the offending blog posts including one in which Munroe stated she was "blogging AT work," (capitalization in original), and offered alternative "canned" comments for student evaluations including:  "Sneaking, complaining, jerkoff"; "Whiny, simpering grade-grubber with an unrealistically high perception of own ability level"; and "Am concerned that your kid is going to come in one day and open fire on the school. (Wish I was kidding.)"  

Schoolroom circa 1896 via

Later posts were equally unflattering about students and teaching.  And while the blog was originally subscribed to by a handful of people, some posts circulated and attracted the interest of the press.  Termination was contemplated, Munroe took a scheduled maternity leave, and also did her own interviews with the press. 

The majority's opinion "reluctantly" concludes that Munroe's speech implicated a matter of public concern, but then diminishes any public concern, and then reinstates it and states that: 

Given our assessment of the interests of Munroe and the public in her speech, Defendants were not required to make an especially vigorous showing of actual or potential disruption in this case. However, even if we were to assume arguendo that her speech “possesses the highest value,”  we would still conclude that Defendants met their burden. Simply put, “Plaintiff’s speech, in both effect and tone, was sufficiently disruptive so as to diminish any legitimate interest in its expression, and thus her expression was not protected.”

Interestingly, the majority also seems to hold teachers to a higher standard - - - despite the fact that Pickering itself involved a school teacher.  While recognizing that the parents objecting to Munroe's speech cannot constitutionally be a "heckler's veto" to protected speech, the court states:

However, there is a special (perhaps even unique) relationship that exists between a public school teacher (or other educators, like a guidance counselor), on the one hand, and his or her students and their parents, on the other hand. Simply put, neither parents nor students could be considered as outsiders seeking to “heckle” an educator into silence—“‘rather they are participants in public education, without whose cooperation public education as a practical matter cannot function.’”

 This notion could seriously erode teachers' First Amendment rights.   

 The dissent of Judge Thomas Ambro from the affirmance of summary judgment in favor of the defendant school district concludes:

In short, I have no doubt the School District was well aware that firing Munroe for her blog posts and media tour would land it in constitutional hot water. More than enough evidence suggests that firing her on performance grounds was a pretext for its real reason—she had spoken out to friends on a blog, it became public, School District officials were upset and proposed her termination, they decided to wait, the once- sterling evaluations of Munroe immediately became negative, and she was fired. The bottom line: too many signs suggest this was all a set-up that a jury needs to sort out.

A petition for en banc review is presumably forthcoming.

In Memoriam: Dennis Greene

ConLawProf Dennis Greene of University of Dayton School of Law was perhaps best known for his entertainment law work and his pre-law career as co-founder of the group Sha-Na-Na.

 

Memorial information pending.

Washington Supreme Court Finds Charter School Initiative Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Late Friday before the long Labor Day weekend, the Washington Supreme Court found Initiative 1240, known as the Charter School Act (codified at chapter 28A.7 10 RCW) unconstitutional in its divided opinion,  League of Women Voters of Washington v. State of Washington, affirming a King County Superior Court decision.

The Washington Supreme Court majority found that the Charter School Act violated Article IX §2 of the state constitution which provides:

PUBLIC SCHOOL SYSTEM. The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established. But the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools.

In essence because the charter schools were decidedly not "common schools" as that phrase has been defined under state law since 1909 and because the funding for charter schools was from the "common school fund," the Charter School Act's funding provision violated the state constitution.  The court, in its opinion by Chief Justice Barbara Madsen (pictured center front below), rejected the state's argument that notwithstanding the constitutional provision funding should follow the student. 

 

The dissenting and concurring opinion by Justice Mary E. Fairhurst,  joined by Justices Steven C. González and Sheryl Gordon McCloud, agreed that charter schools are not "common schools," but disagreed that the Charter School Act required charter schools to be funded by monies intended for common schools. 

The court's majority eschewed a political interpretation of the case:

Our inquiry is not concerned with the merits or demerits of charter schools. Whether charter schools would enhance our state’s public school system or appropriately address perceived shortcomings of that  system are issues for the legislature and the voters. The issue for this court is what are the requirements of the constitution.

Nevertheless, the case will most certainly be interpreted in political terms.  Proponents of charter schools will undoubtedly continue their efforts.  Importantly, however, the case is not reviewable by the United States Supreme Court since it rests exclusively on a matter of state law.  The funding of charter schools from sources not meant for public education  - - - which the dissenting Justices believed a reality - - - could be clarified.  And the possibility of an amendment of the state constitution, of course, remains an option. 

A Sharp Dissent in Little Sisters' Challenge to Contraception Mandate

Steven D. Schwinn, John Marshall Law School

The full Tenth Circuit today declined to grant an en banc rehearing of the panel's July 2015 ruling that HHS's religious accommodation to the ACA's contraception mandate violated statutory and First Amendment rights of Little Sisters of the Poor. We posted on the panel decision here.

No party called for an en banc rehearing; instead, the court decided sua sponte to consider it. But a majority voted no.

Judge Hartz wrote a dissent, joined by four other judges, arguing that the panel wrongly recast Little Sisters's religious beliefs. In particular, the dissent argued that the panel wrongly interpreted Little Sisters's belief "as being only opposition to facilitating the use and delivery of certain contraceptives to which they object." According to the dissent, "Under this reframing, the plaintiffs have no religious objection to executing the forms; it is just that executing the forms burdens their religious opposition to contraceptives."

Put another way, the panel majority may be saying that it is the court's prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a "derivative" religious belief that executing the documents is sinful. This is a dangerous approach to religious liberty.

Judge Hartz argued that "the doctrine of the panel majority will not long survive," because "[i]t is contrary to all precedent concerning the free exercise of religion."

If you're wondering how, under Judge Hartz's approach, an organization like Little Sisters might tell the government that it has a religious objection to the contraception mandate without violating its own religious beliefs (a question that stumped other courts: how can a religious accommodation itself violate free exercise?), Judge Hartz says that the dissent only goes to the "substantial burden" on religion (and thus triggers strict scrutiny). The certification might still satisfy strict scrutiny--a question that Judge Hartz would send back to the lower court on remand.

D.C. Circuit Denies Attorneys' Fees to Shelby County

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit today denied attorneys' fees to Shelby County growing out of its successful challenge to the coverage formula for preclearance in the Voting Rights Act. But more importantly: A majority on the panel rejected Shelby County's states' rights interpretation of the VRA.

The case arose out of Shelby County's motion for attorneys' fees after the Supreme Court struck Section 4 of the VRA, the coverage formula for preclearance, in Shelby County v. Holder. The VRA fee-shifting provision says,

In any action or proceeding to enforce the voting guarantees of the [F]ourteenth or [F]ifteenth [A]mendment, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable [attorneys'] fee, reasonable expert fees, and other reasonable litigation expenses as part of the costs.

But to win attorneys' fees, Shelby County had to show (1) that it was eligible for fees under the provision and (2) that it was entitled to them under Newman v. Piggie Park.

All three on the panel agreed that Shelby County wasn't entitled under Piggie Park. That's because "Shelby County's lawsuit did not facilitate enforcement of the VRA; it made enforcing the VRA's preclearance regime impossible." "Shelby County's argument boils down to the proposition that Congress introduced the fee-shifting provision into the VRA in 1975 with the express goal of inducing a private party to bring a lawsuit to neuter the Act's central tool. But that makes no sense." (Emphasis in original.) That was enough to deny attorneys' fees.

But that's also where the case gets interesting. On the eligibility prong, Shelby County argued that it was eligible for fees under the statute, because it prevailed in an action to enforce the voting guarantees of the Fourteenth and Fifteenth Amendments, and that these guarantees include "the structural rights of the states." That last part is a bold departure from the plain language of the amendments and any cases interpreting them; it assumes that the amendments contain some (unenumerated) version of states' rights, which, in turn, could limit the amendments' protection of individual voting rights.

The court left that question open. Judge Griffith, writing for the court, dodged it by relying only on the Piggie Park prong. Judge Silberman, in concurrence, seemed (more or less) to agree (at least on this point). Only Judge Tatel specifically took on Shelby County's reading. Judge Tatel wrote that the question was simple: "Obviously, neither of these [amendments] includes any guarantees of state autonomy over voting. . . . The two Amendments thus 'guarantee' not state autonomy, but rather the right of citizens to vote, and they expressly guarantee that right against state interference."

The upshot is that the court appears to have left Shelby County's states' rights interpretation of the Fourteenth and Fifteenth Amendments on the table, an open question. This means that the Supreme Court could step in and answer it--it Shelby County's favor. (And given the Court's states' rights approach in the original case, this seems like a possibility.)

Still, the court's reasoning on Piggie Park is extremely thorough, and seems written to insulate the ruling against Supreme Court reversal.

 

Ninth Circuit OKs Jesus Statute on Public Land

Steven D. Schwinn, John Marshall Law School

A divided panel of the Ninth Circuit today upheld a U.S. Forest Service decision to renew a permit for the Knights of Columbus's Jesus statute on public land. The ruling means that Jesus stays on the USFS's Big Mountain.

Judge Owens wrote that the statute didn't violate the Establishment Clause, because the USFS's decision to renew the statute's permit reflected a primarily secular purpose (despite its portrayal of Jesus), and because USFS's permit didn't endorse religion. (According to Judge Owens, several factors suggest that the permit didn't endorse religion, including "the flippant interactions of locals and tourists with the statute [including] decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as [mountain-goers] ski by, and posing in Facebook pictures.") Judge Owens also distinguished Trunk v. City of San Diego, where the court ruled that a giant cross violated the Establishment Clause.

Judge N.R. Smith concurred, but argued that the case should be analyzed as private speech in a public forum. Judge Smith wrote that the permit should be upheld so long as the government didn't discriminate in granting it, and it didn't. Moreover, the Knights (not the government) maintains the statute.

Judge Pregerson dissented, arguing that "a twelve-foot tall statute of Jesus situated on government-leased land cannot realistically be looked upon as 'predominantly secular in nature,'" and that "a 'reasonable observer would perceive' the statute situated on government land 'as projecting a message of religious endorsement.'"

District Judge Finds "Obamacare" Contraception Mandate Unconstitutional as applied to "March for Life"

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In an opinion that essentially extends religious protections to a nonreligious organization, Judge Richard Leon has ruled in March for Life v. Burwell that the so-called contraceptive mandate in the Patient Protection and Affordable Care Act (ACA or "Obamacare") cannot constitutionally be applied to a nonprofit anti-abortion employer.  While portions of Judge Leon's opinion predictably relied upon the Supreme Court's closely divided 2014 decision in Burwell v. Hobby Lobby, Inc. under the Religious Freedom Restoration Act (RFRA), Judge Leon notably found that the contraception mandate's exclusion of religious organizations - - - but not other organizations - - - violated the equal protection component of the Fifth Amendment.

Judge Leon applied rational basis review, but declared that

Were defendants to have their way here, rational basis review would have all the bite of a rubber stamp!

He continued:

Defendants contend that March for Life is not “similarly situated” to the exempted organizations because it “is not religious and is not a church.” Rational basis review is met, they argue, because the purpose served, “accommodating religious exercise by religious institutions,” is “permissible and legitimate.”  This not only oversimplifies the issue—it misses the point entirely! The threshold question is not whether March for Life is “generally” similar to churches and their integrated auxiliaries. It is whether March for Life is similarly situated with regard to the precise attribute selected for accommodation.  For the following reasons, I conclude that it most assuredly is.

[citations omitted]. 

image via "March for Life" about us

In short, Judge Leon found that "March for Life" was similarly situated to religious organizations given the HHS rationale for excluding religious organizations from the contraception mandate:

HHS has chosen to protect a class of individuals that, it believes, are less likely than other individuals to avail themselves of contraceptives. It has  consequently moored this accommodation not in the language of conscientious objection,  but in the vernacular of religious protection. This, of course, is puzzling. In HHS’s own  view, it is not the belief or non-belief in God that warrants safe harbor from the Mandate.  The characteristic that warrants protection——an employment relationship based in part on a shared objection to abortifacients—is altogether separate from theism. Stated  differently, what HHS claims to be protecting is religious beliefs, when it actually is  protecting a moral philosophy about the sanctity of human life. HHS may be correct that  this objection is common among religiously-affiliated employers. Where HHS has erred,  however, is in assuming that this trait is unique to such organizations. It is not.

In other words, the HHS's rationale - - - the government interest - - - was not specifically religious and thus should not be limited to religious organizations in keeping with principles of equal protection.  Some of this reasoning is reminiscent of Hobby Lobby, of course, but there the level of scrutiny under RFRA was strict (or perhaps even stricter than strict) scrutiny, while Judge Leon is applying rational basis scrutiny. 

Interestingly, Judge Leon states that  "'religion' is not a talisman that sweeps aside all constitutional concerns," and quotes the classic conscientious objector case of Welsh v. United States (1970) for the "long recognized" principle that  “[i]f an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content . . . those beliefs certainly occupy in the life of that individual a place parallel to that filled by God in traditionally religious persons.”  Taken to its logical conclusion, this reasoning has the potential to eliminate - - - or at least ameliorate - - - the "special" protection of religious freedom.

In his application of RFRA, Judge Leon's opinion is on more well-plowed ground.  He notes that while "March for Life is avowedly non—religious, the employee plaintiffs do oppose the Mandate on religious grounds."  This brings the case within the purview of Hobby Lobby.  As Judge Leon phrases it:

The final question the Court must ask under RFRA is whether the current Mandate is the least restrictive means of serving this governmental interest. Assuredly, it is not!

While Judge Leon dismissed the free exercise claim,  based upon the DC Circuit's opinion and denial of en banc review in Priests for Life v HHS, the judge granted summary judgment in favor of plaintiffs on the Equal Protection and RFRA claims (as well as a claim under the Administrative Procedure Act).  

When this case reaches the DC Circuit, it will be interesting to see how the court - - - as well as religious organizations and scholars - - - views Judge Leon's potentially destabilizing equal protection analysis.