Constitutional Law Prof Blog

Court Halts Florida's Ban on Transgender Care for Minors

A federal district court this week preliminarily enjoined Florida officials from enforcing the state's ban on medical care for transgender minors against the three plaintiffs and their healthcare providers.

The court in Doe v. Ladapo held that the ban likely violated equal protection and the right to parent. In short, it said that Florida had no good reason for the ban, especially in light of the overwhelming medical evidence supporting treatment, and that its stated purposes were plainly pretextual.

The ruling follows Brandt ex rel. Brandt v. Rutledge, a ruling from the Eighth Circuit and the only circuit court ruling on the issue.

South Carolina Supremes Strike Six-Week Abortion Ban Under State Constitution

The South Carolina Supreme Court ruled yesterday that the state's ban on abortion after six weeks of pregnancy violated the state constitution's right to privacy.

In doing so, the court broke with the historical approach that the Supreme Court used last summer in Dobbs v. Jackson Women's Health Organization, when it overturned Roe v. Wade. The Court in Dobbs used only history before and leading up to the adoption of the Fourteenth Amendment in concluding that the Fourteenth Amendment didn't protect a right to abortion, whereas the South Carolina Supreme Court also considered the place of women in political society at the time of the adoption of the provision at issue and events that have "transpired since the amendment was adopted."

The court based the ruling on Article I, Section 10, of the South Carolina Constitution, which says: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated." The provision sounds like the Fourth Amendment, with the addition of a specific right to privacy. But the court rejected a reading that would've limited the privacy part to government searches and seizures; it said that the privacy part wouldn't be doing any work if it were so limited, and that it therefore must grant a more general right to privacy.

The court also rejected a reading of the provision that depended on what the provision's framers thought at the time of adoption in the mid-1960s, given that women weren't included in the framing committee and given that the state "had neither permitted women to serve on juries in this state nor ratified the Nineteenth Amendment."

The court then wrote that "[w]e cannot relegate our role of declaring whether a legislative act is constitutional by blinding ourselves to everything that has transpired since the amendment was adopted." It said the Court specifically "declined to do so in the context of 'separate but equal' education in Brown v. Board of Education, then quoted this passage:

[W]e cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

The approach is a notable break from the Supreme Court's historical approach in Dobbs, when it considered history only before and leading up to the Fourteenth Amendment, and certainly not "everything that has transpired since the amendment was adopted." The South Carolina Supreme Court put a fine point on this break by noting that the Court itself didn't limit its historical assessment to pre-Fourteenth Amendment history in other unenumerated-fundamental-rights cases like Loving, Griswold, Lawrence, and Obergefell.

Check it Out: Re's Should Gradualism Have Prevailed in Dobbs?

Richard M. Re, Should Gradualism Have Prevailed in Dobbs?, SSRN:

Gradualism should have won out in Dobbs v. Jackson Women’s Health, exerting gravitational influence on the majority and dissenters alike. In general, the Supreme Court should not impose massive disruption without first providing notice of its contemplated course of action. Only the Chief Justice followed that principle, and as a result his decision is the most compelling of the bunch. By contrast, the majority opinion sometimes claimed to be strictly formalist, particularly when doing so helped it dismiss prudential objections. Yet the majority’s most plausible rationale was, inevitably, steeped in judicial statecraft. In essence, the majority claimed that only grand, decisive action could meet the challenge at hand. But by acting in haste, the Court compromised its own deliberative process and prevented the public from adequately preparing for an avulsive shift in the law. The joint dissent’s treatment of precedent was, if anything, even less persuasive. The dissent’s own uses of precedent demonstrate how readily case law is thrown overboard – not just in the past few years, but throughout many decades. And new personnel can offer a uniquely compelling basis for revisiting case law. So, if the majority had reason to moderate, the dissenters did, too – by joining a gradualist opinion like the Chief’s.

Court Overturns Roe v. Wade

Steven D. Schwinn, University of Illinois School of Law

As expected, the Supreme Court today overturned Roe v. Wade and ruled that women do not have a fundamental right to abortion.

The extraordinary ruling rolls back nearly 50 years of a fundamental right, and quite plainly lays the groundwork for overturning other fundamental rights.

The ruling allows and invites States to regulate abortion any way they wish, including criminalizing the procedure from the point of conception, with no life or health exception for the woman, and no exceptions for rape or incest. (The opinion doesn't compel this; it just allows and invites it.) Expect to see myriad regulations in about half the States (many of which have "trigger" laws that will regulate abortion as soon as the Court overturns Roe, that is, today), and a number of other States moving explicitly to protect abortion (some have already done so in one way or another).

Justice Alito wrote for the Court, joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. He wrote that Roe was wrong when it was decided, and should be overturned.

Justice Thomas concurred, arguing that there's no such thing as substantive due process, and that the Court should reconsider all its substantive-due-process cases, including Griswold (right to contraception), Lawrence (right of two consenting adults to engage in private sexual conduct), and Obergefell (right to marry, including for same-sex couples).

Justice Kavanaugh concurred, arguing that the ruling only says that the Constitution is silent on abortion, and that the ruling kicks the issue to the States.

Chief Justice Roberts concurred in the result, arguing that while the viability line "never made any sense," the Court should nevertheless affirm the right to abortion to "extend far enough to ensure a reasonable opportunity to choose," but no further.

Justice Breyer dissented, joined by Justices Sotomayor and Kagan.

High Court Leaves Texas Abortion Ban in Place, but Expedites Appeal

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court today declined to halt the Texas abortion ban, S.B. 8, but expedited appeals by abortion providers and the Biden administration in two separate orders today.

Today's actions by the Court mean that Texas's law stays in place while the appeals proceed at the Supreme Court. The Court set a super-fast briefing schedule and slated oral argument in both cases for November 1.

In the Biden administration appeal, the Court limited the case to whether the United States can sue Texas, state court judges, state court clerks, other state officials, and private parties to prohibit S.B. 8 from being enforced. Justice Sotomayor dissented, arguing that the Court's failure to halt the law pending appeal effectively means that women can't get abortions in Texas. (We posted on the Biden administration appeal most recently here.)

In the doctors' appeal, the Court will decide both whether the doctors can sue state judges, state officials, and private individuals, and, if so, whether S.B. 8 is unconstitutional.

(Remember that the Court will hear yet another case testing a state's abortion ban--Mississippi's ban on abortions after 15 weeks of pregnancy. That case, Dobbs v. Jackson Women's Health Organization, puts Roe and Casey front and center. Still, there may be room in the case for the Court to uphold the law without flat-out overruling Roe. Oral argument in Dobbs is set for December 1.)

Federal Government Asks Supreme Court to Halt Texas's Antiabortion Law

Steven D. Schwinn, University of Illinois Chicago School of Law

The federal government yesterday asked the Supreme Court to reinstate a lower court injunction against Texas's S.B. 8, the state law that effectively shut down nearly all abortions in the state. The move came after the Fifth Circuit stayed the district court's injunction pending appeal.

This'll be the second trip that S.B. 8 makes to the high court. Recall that the Court in an earlier pre-enforcement lawsuit allowed S.B. 8 to go into effect. The Court ruled that the plaintiffs in that earlier case sued the wrong defendants, state judicial officers and private individuals who said that they'd enforce S.B. 8.

The federal government's suit is tailored to navigate that procedural problem in the earlier case and put the issue of S.B. 8's constitutionality squarely before the Court.

In order to do this, the federal government sued Texas itself (not its officers or judges, and no private individuals). The government argues that it can do this in order "to vindicate two distinct sovereign interests":

First, to the extent S.B. 8 interferes with the federal government's own activities, it is preempted and violates the doctrine of intergovernmental immunity. Second, S.B. 8 is an affront to the United States' sovereign interests in maintaining the supremacy of federal law and ensuring that the traditional mechanisms of judicial review endorsed by Congress and this Court remain available to challenge unconstitutional state laws. The United States has authority to seek equitable relief to vindicate both interests.

(That first interest goes to government obligations to assist certain individuals, like those incarcerated in federal prison, in getting an abortion. If the government honors that obligation for incarcerated women in Texas, it can be subject to civil suit under S.B. 8 in Texas courts. According to the government, this means that S.B. 8 is preempted by those federal obligations, and that S.B. 8, in allowing suits against the United States, violates the government's immunity.)

As a result, the government argues that its suit avoids the wrong-defendant problem in the earlier suit. After all, Texas itself created the mechanism that outsourced enforcement of S.B. 8 to private parties, and so Texas itself must be accountable in court.

The government asked the Court to vacate the Fifth Circuit's stay, or to grant cert. before judgment and set the case for argument this Term.

Court to Take Up Challenge to Right to Abortion, Roe v. Wade

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court agreed to hear a case challenging Mississippi's ban on abortions after 15 weeks of pregnancy, except in cases of medical emergencies or severe fetal abnormality. The case, Dobbs v. Jackson Women's Health Organization, threatens the fundamental right to an abortion under Roe and Casey.

That's because with the addition of Justice Barrett (replacing Justice Ginsburg), there are now six solid votes against the fundamental right to an abortion. This counts Chief Justice Roberts, who only begrudgingly voted to overturn state restrictions on abortion last Term in June Medical. Chief Justice Roberts joined the four progressives in that case, but wrote separately to base his vote on stare decisis, and the Court's 2016 decision in Hellerstedt, a case with virtually identical facts. There's no guarantee that he'd vote to uphold or defer to Roe and Casey in the same way. Even if he did, though, there'd still be five likely votes to overturn Roe.

Still, the case gives the Court some room to sharply curtail the right to abortion without necessarily overturning Roe.

The QP is whether all pre-viability prohibitions on elective abortions are unconstitutional. Here's the cert. petition; here's the Court's docket.

 

Obergefell as Precedent: First Monday in October

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

On the first Monday in October, the United States Supreme Court begins its Term, this time with only eight of the usual nine Justices given Justice Ginsburg's death in September.

In today's Order List of the Term, the Court denied certiorari in Davis v. Ermold to the Sixth Circuit's decision that court clerk Kim Davis did not have immunity from a damages suit. (Recall that in 2017 the Sixth Circuit allowed the damages suit to proceed). Kim Davis achieved notoriety as a clerk who refused to issue a marriage license to a same-sex couple despite the United States Supreme Court's ruling in Obergefell v. Hodges.

Two Justices on the Court who dissented in Obergefell — Thomas joined by Alito — used today's denial of certiorari to issue a "statement" (it is not a dissent as the issue is not "cleanly presented" in this case) to cast doubt on the continued validity of Obergefell:

this petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have “ruinous consequences for religious liberty.”

Two Justices who joined the slim 5-4 majority in Obergefell  — Ginsburg and Kennedy — are no longer on the Court.  This statement sends a strong message to courts and advocates that the the Court would contemplate overruling or severely limiting Obergefell should the issue be more "cleanly presented."

Sixth Circuit En Banc to Hear Right to Literacy Case

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

The Sixth Circuit has granted en banc review requested by a member of the court (rather than the parties) in Gary B. v. Whitmer. The panel's "previous decision and judgment of this court are vacated, the mandates are stayed, and these cases are restored to the docket as pending appeals."

This is not unanticipated. Recall that a divided panel held that there is a fundamental right to a "basic minimum education" providing "access to literacy" as a substantive due process right under the Fourteenth Amendment.  Our extensive analysis of the panel opinion is here.

Check it Out: Robson on Positive Rights in a Pandemic

Check out ConLawProf Blog's own Prof. Ruthann Robson's (CUNY) outstanding and timely piece, Positive Constitutionalism in a Pandemic: Demanding Responsibility from the Trump Administration, in the U. Akron ConLawNOW Symposium on Pandemics and the Constitution.

Robson argues for positive rights to health and life in the current crisis--"a Constitution that protects our survival"--and not just the negative rights under existing doctrine. (But she also notes that the Administration's mis-handling provides plenty of fodder even for negative rights claims.)

Read it!

Eleventh Circuit: Florida Law Mandating Indigent Voters Pay Fines and Fees Violates Equal Protection Clause

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

In an extensive opinion in Jones v. Governor of Florida, the Eleventh Circuit found that the Florida legislature's imposition of payment of all fines, fees, and restitution connected with a felony conviction as a necessary precondition for re-enfranchisement violated the Fourteenth Amendment's Equal Protection Clause.

Recall that Florida law disenfranchising persons convicted of felonies, held unconstitutional in 2018, was changed by a voter referendum to amend the Florida Constitution. Amendment 4.  Amendment 4 changed the Florida Constitution to provide:

any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.

Fla. Const. Art. VI §4.  After the amendment was passed, the Florida legislature passed SB7066, codified as Fla. Stat. §98.071 (5) which defined "completion of all terms of sentence" to include "full payment of any restitution ordered by the court, as well as "Full payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision, including, but not limited to, probation, community control, or parole." 

Recall that in October 2019, United States District Judge Robert Hinkle of the Northern District of Florida held that the Florida statute requiring payment of fines, fees, and costs in order for a person convicted of a felony to have their voting rights restored is unconstitutional and should be enjoined, providing that persons affected should have the opportunity to prove their inability to pay.

The Eleventh's Circuit per curiam opinion of 78 pages concluded that the statute's requirement of payment of "legal financial obligations" (known as LFO) could not be sustained under heightened scrutiny.  While wealth classifications in equal protection do not generally merit heightened scrutiny, the Eleventh Circuit noted that

But the Supreme Court has told us that wealth classifications require more searching review in at least two discrete areas: the administration of criminal justice and access to the franchise. M.L.B. [ v. S.L.J.], 519 U.S. at 123  [1996] (“[O]ur cases solidly establish two exceptions to that general rule [of rational basis for wealth classifications]. The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license. Nor may access to judicial processes in cases criminal or ‘quasi criminal in nature’ turn on ability to pay.” (citations omitted)). Because Florida’s re-enfranchisement scheme directly implicates wealth discrimination both in the administration of criminal justice and in access to the franchise, we are obliged to apply some form of heightened scrutiny. Florida has implemented a wealth classification that punishes those genuinely unable to pay fees, fines, and restitution more harshly than those able to pay—that is, it punishes more harshly solely on account of wealth—and it does so by withholding access to the franchise. The observation that Florida may strip the right to vote from all felons forever does not dictate that rational basis review is proper in this case. To the contrary, settled Supreme Court precedent instructs us to employ heightened scrutiny where the State has chosen to “open the door” to alleviate punishment for some, but mandates that punishment continue for others, solely on account of wealth.

Further,

The Supreme Court has also determined that a state may not extend punishment on account of inability to pay fines or fees. See Bearden, 461 U.S. at 672–73 (holding that a state may not revoke probation—thereby extending a prison term—based on the failure to pay a fine the defendant is unable, through no fault of his own, to pay); Tate, 401 U.S. at 399 (holding that a state cannot imprison under a fine-only statute on the basis that an indigent defendant cannot pay a fine); Williams, 399 U.S. at 240–41 (holding that a period of imprisonment cannot be extended beyond the statutory maximum on the basis that an indigent cannot pay a fine).

For the Eleventh Circuit, disenfranchisement is clearly punishment, and also clearly a "continuing form of punishment." (emphasis in original). The Eleventh Circuit acknowledged that while felon disenfranchisment schemes are generally only subject to rational basis review, here, the long and short of it is that:

 once a state provides an avenue to ending the punishment of disenfranchisement—as the voters of Florida plainly did—it must do so consonant with the principles of equal protection and it may not erect a wealth barrier absent a justification sufficient to overcome heightened scrutiny.

The court then applied the form heightened scrutiny from Bearden v. Georgia (1983) including its four considerations: (1) “the nature of the individual interest affected”; (2) “the extent to which it is affected”; (3) “the rationality of the connection between legislative means and purpose”; and (4) “the existence of alternative means for effectuating the purpose.” The court rather expeditiously analyzed the individual's interests as great, the state's interests as minor, and noted the lack of realistic alternatives.

Further, the court rejected Florida's argument that the plaintiffs must demonstrate discriminatory intent:

This is a wealth discrimination case. And the Supreme Court has squarely held that [Washington v.] Davis’s intent requirement is not applicable in wealth discrimination cases. See M.L.B., 519 U.S. at 126–27 (rejecting, in the context of a wealth discrimination claim, the argument that Washington v. Davis requires proof of discriminatory intent).

The Eleventh Circuit opinion concluded that although to the "extent a felon can pay LFOs, he or she must," but clearly affirmed the district court's order enjoining the state "from preventing the plaintiffs from voting based solely on their genuine inability to pay legal financial obligations."

[image: Florida vote on Amendment 4 via]

SCOTUS Hears Oral Arguments on Montana Blaine Amendment for School Scholarship

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

The Court heard oral arguments in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships as violating the First Amendment's religion clauses and the equal protection clause.

Under the original Tax Credit Program, the law provided a taxpayer a dollar-for-dollar tax credit based on the taxpayer’s donation to a Student Scholarship Organization. However, Montana has a constitutional provision, Art. X §6, which prohibits aid to sectarian schools, so the department of revenue added "Rule 1" to the state tax credit scheme excluding from the definition of "qualified education provider" eligible under the scheme "a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination."  Parents challenged the constitutionality of Rule 1, but when the litigation reached the Montana Supreme Court, it held that the Tax Credit Program was unconstitutional under Art. X §6 and therefore it did not need to reach the issue regarding Rule 1:

Having concluded the Tax Credit Program violates Article X, Section 6, it is not necessary to consider federal precedent interpreting the First Amendment’s less-restrictive Establishment Clause. Conversely, however, an overly-broad analysis of Article X, Section 6, could implicate free exercise concerns. Although there may be a case where an indirect payment constitutes “aid” under Article X, Section 6, but where prohibiting the aid would violate the Free Exercise Clause, this is not one of those cases. We recognize we can only close the “room for play” between the joints of the Establishment and Free Exercise Clauses to a certain extent before our interpretation of one violates the other.

In the oral argument, Justice Ginsberg characterized the option exercised by the Montana Supreme Court as leveling down: "When a differential is challenged, the court inspecting the state law can level up or level down. And here it leveled down." (This "leveling down" approach occurred in Justice Ginsburg's opinion for the Court in Sessions v. Santana-Morales (2017)). And here that leveling down effected questions of standing which troubled Justices Ginsburg, Sotomayor, and Kagan in their early questions to the attorney for the petitioners — the parents and original plaintiffs — who are "three levels removed" from any injury as Sotmayor stated.

The Montana Supreme Court assumed center stage at times, with Justice Alito for example questioning not simply whether the court was wrong but whether it was discriminatory:

isn't the crucial question why the state court did what it did?

If it did what it did for an unconstitutionally discriminatory reason, then there's a problem under Village of Arlington Heights.

So I'll give you an example. The state legislature sets up a scholarship fund, and after a while, people look at the – the recipients of the scholarships, and some people say: Wow, these are mostly going to blacks and we don't like that and that's contrary to state law. So the state supreme court says: Okay,that discrimination is -- we're going to strike down the whole thing.

Is that constitutional?

The attorney for Montana, Adam Unikowsky rejected "the race analogy" stating that "we just don't think that race and religion are identical for all constitutional reasons."

Justice Breyer explained, "what he's saying is that, look, the court took the case in the Prince Edward County thing -- " or "the equivalent and said they couldn't do that. They can't shut down all the schools, even though the Constitution they didn't say had a right and so that's the similarity."

This question of the race-religion analogy persisted, with the motivation behind the Montana state constitutional provision, often known as a Blaine Amendment, being "rooted in -- in grotesque religious bigotry against Catholics," as Justice Kavanaugh phrased it. Justice Kagan seemingly rejected the notion that the court's striking down the entire program must be motivated by animus towards religion:

And I can think of many reasons why you would strike down the whole program that have nothing to do with animus toward religion. You might actually think that funding religion imposes costs and burdens on religious institutions themselves. You might think that taxpayers have conscientious objections to funding religion. You might think that funding religion creates divisiveness and conflict within a society, and that for all those reasons, funding religious activity is not a good idea and that you would rather level down and fund no comparable activity, whether religious or otherwise, than fund both. Now, none of those things have anything to do with animus towards religion . . . .

Yet soon after, Chief Justice Roberts returned to the race analogy. Later, Justice Breyer would ask:

can we--can you or could I say this: Yes, race is different from religion. Why? There is no Establishment Clause in regard to race.

The specific doctrinal arguments revolve around the extension of Trinity Lutheran Church of Columbia, Mo. v. Comer, decided in 2017, involving Missouri's state constitutional Blaine Amendment and the denial of funds to a church school playground.  And more deeply, the "play in the joints" notion from Locke v. Davey — which was itself divisive in Trinity Lutheran — is implicated. At stake is the possibility that Free Exercise Clause will now overwhelm any anti-Establishment concerns.

 

Federal Judge Enjoins Florida's Statute Conditioning Right to Vote on Payment of Finess and Fees

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

In an opinion in Jones v. DeSantis, United States District Judge Robert Hinkle of the Northern District of Florida held that the Florida statute requiring payment of fines, fees, and costs in order for a person convicted of a felony to have their voting rights restored is unconstitutional and should be enjoined.

Recall that Florida law disenfranchising persons convicted of felonies, held unconstitutional in 2018, was changed by a voter referendum to amend the Florida Constitution. Amendment 4.  Amendment 4 changed the Florida Constitution to provide:

any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.

Fla. Const. Art. VI §4.  After the amendment was passed, the Florida legislature passed SB7066, codified as Fla. Stat. §98.071 (5) which defined "completion of all terms of sentence" to include "full payment of any restitution ordered by the court, as well as "Full payment of fines or fees ordered by the court as a part of the sentence or that are ordered by the court as a condition of any form of supervision, including, but not limited to, probation, community control, or parole."

Judge Hinkle first addressed Florida's motion to dismiss based on lack of standing and motion to abstain, finding them without merit. Judge Hinkle then discussed whether or not Amendment 4 authorized the statute extending the conditions to all restitution, fines, and fees, acknowledging that "the last word will belong to the Florida Supreme Court," on the matter of that interpretation. However, for purposes of the issue of constitutionality at this stage, the judge assumed that " “all terms of sentence” includes fines and restitution, fees even when unrelated to culpability, and amounts even when converted to civil liens, so long as the amounts are included in the sentencing document."

While the court acknowledged that a state can deny persons convicted of a felony the right to vote under the Fourteenth Amendment as construed by the Court in Richardson v. Ramirez (1974), here the state had amended its constitution not to do so, but with an exception for those persons convicted of felonies who could not meet their financial obligations. Thus, the Equal Protection Clause is implicated. On this point, Judge Hinkle found Eleventh Circuit precedent was clear, citing Johnson v. Governor of Florida, 405 F.3d 1214 (11th Cir. 2005) (en banc). The court quotes the en banc court in Johnson stating:

Access to the franchise cannot be made to depend on an individual’s financial resources. Under Florida’s Rules of Executive Clemency, however, the right to vote can still be granted to felons who cannot afford to pay restitution. . . . Because Florida does not deny access to the restoration of the franchise based on ability to pay, we affirm the district court’s grant of summary judgment in favor of the defendants on these claims.

[emphasis in original]. For Judge Hinkle, this is both the "starting point of the analysis of this issue, and pretty much the ending point." 

As support for Johnson and further explication of the standard of review under equal protection doctrine, Judge Hinkle reasoned:

Johnson does not lack Supreme Court support; it is consistent with a series of Supreme Court decisions.

In one, M.L.B. v. S.L.J., 519 U.S. 102 (1996), the Court noted the “general rule” that equal-protection claims based on indigency are subject to only rational-basis review. This is the same general rule on which the Secretary [of State of Florida] places heavy reliance here. But in M.L.B. the Court said there are two exceptions to the general rule. 

The first exception, squarely applicable here, is for claims related to voting.  The Court said, “The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license.”  The Court cited a long line of cases supporting this principle.  In asserting that the Amendment 4 and SB7066 requirement for payment of financial obligations is subject only to highly deferential rational-basis scrutiny, the Secretary ignores this exception.

The second exception is for claims related to criminal or quasi-criminal processes. Cases applying this exception hold that punishment cannot be increased because of a defendant’s inability to pay. See, e.g., Bearden v. Georgia, 461 U.S. 660 (1983) (holding that probation cannot be revoked based on failure to pay an amount the defendant is financially unable to pay). Disenfranchisement of felons has a regulatory component, see, e.g., Trop v. Dulles, 356 U.S. 86, 96-97 (1958), and when so viewed, disenfranchisement is subject only to the first M.L.B. exception, not this second one. But when the purpose of disenfranchisement is to punish, this second exception applies. If, after adoption of Amendment 4, the purported justification for requiring payment of financial obligations is only to ensure that felons pay their “debt to society”—that is, that they are fully punished—this second M.L.B. exception is fully applicable.

Another case applying these principles is Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), which was cited in both M.L.B. and the Johnson footnote. In Harper the Supreme Court said “[v]oter qualification has no relation to wealth.”  The Court continued, “[w]ealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process.”  And the Court added, “[t]o introduce wealth or payment of a fee as a measure of a voter’s qualifications is to introduce a capricious or irrelevant factor.” The Secretary says none of this is true when the voter is a felon, but the Secretary does not explain how a felon’s wealth is more relevant than any other voter’s. And Johnson plainly rejected the Secretary’s proposed distinction.

[some citations omitted]

Judge Hinkle's remedy was not to entirely enjoin the enforcement of the statute. Instead, Florida must follow its procedures and amend them if need be to allow indigent persons to demonstrate their inability to pay any restitution, fines, or fees. Nevertheless, this is a victory for those who have argued that the Florida statute undermined Amendment 4.

[image via]

 

SCOTUS Terms Begins With LGBTQ Title VII Cases

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

The United States Supreme Courts 2019 Term begins with oral arguments in three cases that will impact LGBTQ equality.  To be clear, the Court is not considering constitutional law issues.  Instead all three cases involve statutory interpretation of the prohibition of discrimination "because of sex" in Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et. seq.

The two consolidated cases both involve sexual orientation discrimination. In Altitude Express v. Zarda, the Second Circuit en banc held that sexual orientation discrimination constituted a form of discrimination "because of sex" under Title VII, overruling previous Second Circuit decisions, and provoking the dissent of four judges.  Reaching the opposite conclusion, the Eleventh Circuit in Bostock v. Clayton County Board of Commissioners, clung to its previous precedent, first in an unpublished opinion affirming the dismissal of the complaint, and then in a denial of rehearing en banc requested by a member of the court, with two judges issuing a dissenting opinion. 

In deciding whether or not sexual orientation discrimination is included in Title VII's "because of sex" language, the primary precedent for the Court is its unanimous opinion in Oncale v. Sundowner Offshore Services (1998), authored by the late Justice Scalia.  The claim involved same-sex sexual harassment and the Court held:

We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

The third case LGBTQ Title VII case to be considered by the Court in the Term's opening days is R.G. & G.R. Harris Funeral Homes v. EEOC.  The Sixth Circuit, in its unanimous panel opinion reversing the district judge, found that discrimination "against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII" under the "because of sex" discrimination prohibition. The court found that the "Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex" and that the religious claim under the Religious Freedom Restoration Act, RFRA, 42 U.S.C. § 2000bb–1, raised by the funeral home's owner failed because "Title VII here is the least restrictive means of furthering its compelling interest in combating and eradicating sex discrimination."

While the Court has not previously decided a case of transgender discrimination under Title VII, the Court's opinion in Price Waterhouse  v. Hopkins (1989) held that sex-stereotyping is included within the prohibition of discrimination "because of sex" under Title VII.  Hopkins is a fractured opinion, and none of the Justices who decided the case remain on the Court.

These statutory interpretation cases will provide an indication of the Court's views on LGBTQ equality, a subject last at the Court in the closely-divided same-sex case Obergefell v. Hodges (2015), decided under the Fourteenth Amendment. Further, these three Title VII cases may illuminate how the Court is considering precedent.

Finally, no matter how the Court decides these Title VII issues, Congress retains ultimately authority. In 2019, the House of Representatives passed "The Equality Act" which would amend the 1964 Civil Rights Act to include prohibitions of discrimination on the basis of sexual orientation and gender identity.  The Senate has yet to take up this legislation.

 

Daily Read: Imani Gandy on Justice Thomas's Eugenics Concurrence

Responding to Justice Thomas's concurring opinion from a denial of certiorari in Box v. Planned Parenthood of Indiana, legal commentator Imani Gandy (pictured) writes When It Comes to Birth Control and Eugenics, Clarence Thomas Gets It All Wrong.

Specifically, Gandy takes on the history of Margaret Sanger (1879-1966), who she states is not necessarily a present-day "infallible feminist hero" and certainly had the same abelist views that the Court credited in Buck v. Bell.

But, on the subject of race, Gandy writes:

The framing of Thomas’ concurrence, however, suggests that she [Sanger] did want to reduce the Black population. This framing extends to his description of the Negro Project, which Sanger created in conjunction with some of the most prominent Black civil rights leaders of the time—Franklin Frazier, Walter White, Rev. Adam Clayton Powell, Mary McLeod Bethune, and W.E.B DuBois—in order to bring birth control to the South. Thomas writes as if her mere advocacy for birth control was in and of itself racial eugenics. And he virtually ignores that Black women in the South wanted birth control and had taken their reproduction into their own hands since the days of enslavement, when women would self-induce abortions or even kill their newborns in order to save them from a life of slavery.

Gandy's commentary also provides an interesting critique of Thomas's use of a Sanger quotation by providing larger context. Gandy writes: "What Thomas leaves out is the very next sentence that Sanger wrote . . ."  and thus invites the reader to think more deeply about the history of birth control.

Predictably, Thomas's concurring opinion is provoking other commentaries, but Gandy's piece is among the most insightful.

 

Third Circuit Upholds Philadelphia's Refusal to Refer Foster Children to Organizations that Discriminates on Basis of Sexual Orientation

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

In its opinion in Fulton v. City of Philadelphia, a unanimous panel of the Third Circuit affirmed the district court's denial of a preliminary injunction against Philadelphia for stopping its referral of foster children to organizations that discriminate on the basis of sexual orientation in their certification of foster parents.

Much of the litigation centers on Catholic Social Services (CSS) which will not certify same-sex couples, even those who are legally married to each other, as foster parents.  Once Philadelphia became aware of the CSS policy, through investigative reporting, the city eventually suspended foster care referrals to CSS in accordance with the city's nondiscrimination policy which includes sexual orientation.  The plaintiffs, including individuals about whom the Third Circuit had standing doubts, sued for a preliminary injunction, which the district judge denied after a three day hearing.  On appeal, the Third Circuit agreed that the plaintiffs had not demonstrated a likelihood of success on their First Amendment claims under the Free Exercise Clause, as well as the Establishment Clause and the Speech Clause.

Writing for the panel, Judge Thomas Ambro wrote that the Free Exercise Clause does not relieve one from compliance with a neutral law of general applicability, which the court found the nondiscrimination law to be.  Unlike Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission  and Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), there was no hostility towards religion evinced in the case.  As the court stated:

CSS’s theme devolves to this: the City is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the City is targeting CSS for its religious beliefs. But this syllogism is as flawed as it is dangerous. It runs directly counter to the premise of  [Employment Division v. ] Smith that, while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements. That CSS’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that the City’s desire to regulate that conduct springs from antipathy to those beliefs. If all comment on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well. As the Intervenors rightly state, the “fact that CSS’s non- compliance with the City’s non-discrimination requirements is based on its religious beliefs does not mean that the City’s enforcement of its requirements constitutes anti-religious hostility.”

On the Establishment Clause, Judge Ambro briefly concluded that there was no evidence that Philadelphia was attempting to impose its preferred version of Catholic teaching on CSS.

And in a similarly brief discussion of the free speech claim, Judge Ambro's opinion found there was no viable compelled speech claim or retaliation claim.

Finally, the Third Circuit opinion considered whether there was a possibly successful claim under Pennsylvania's RFRA statute and found that there was little chance of success on the merits, even given the higher standard of review.

This litigation has attracted much interest, with intervenors and amici, and the plaintiffs filed an emergency application to the Supreme Court for an injunction pending appeal or an immediate grant of certiorari in 2018, which was denied.  Another certiorari petition is almost sure to follow the Third Circuit's decision.

 

 

SCOTUS Agrees to Hear Unanimous Jury Incorporation Challenge

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

The United States Supreme Court granted the petition for certiorari in Ramos v. Louisiana posing the question whether the right to a unanimous jury verdict is incorporated as against the states through the Fourteenth Amendment.

Recall that in McDonald v. City of Chicago (2010), in which a 5-4 Court held that the Second Amendment is incorporated as against the states through the Fourteenth Amendment (with four Justices finding this occurred through the Due Process Clause and Justice Thomas stating the proper vehicle was the Privileges or Immunities Clause), Justice Alito writing for the plurality discussed the state of incorporation doctrine in some detail.  In footnote 12, Alito's opinion discussed the provisions of the amendments in the Bill of Rights that had been incorporated, providing citations, and in footnote 13, the opinion discussed the provisions that had not yet been incorporated, other than the Second Amendment then under consideration:

• the Third Amendment’s protection against quartering of soldiers;
• the Fifth Amendment’s grand jury indictment requirement;
• the Seventh Amendment right to a jury trial in civil cases; and
• the Eighth Amendment’s prohibition on excessive fines.

Just this term in February, the Court whittled this small list down to three, deciding unanimously in Timbs v. Indiana that the Eighth Amendment's prohibition on excessive fines is incorporated through the Fourteenth Amendment, following an oral argument in which some Justices expressed wonderment that the issue of incorporation was even arguable in 2018.

But embedded in Timbs was a dispute about whether the "right" and the "substance of the right" must be similar, a question that the Court did not address.  That dispute is at the heart of the incorporation doctrine surrounding the right to have a unanimous jury verdict.  Justice Alito explained the problem in footnote 14 of McDonald, after stating in the text that the general rule is that rights "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972); see also Johnson v. Louisiana, 406 U. S. 356 (1972) (holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials). But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both theFederal Government and the States. See Johnson, supra, at 395 (Brennan, J., dissenting). Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, Apodaca, 406 U. S., at 406 (plurality opinion), and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials, id., at 414–415 (Stewart, J., dissenting); Johnson, supra, at 381–382 (Douglas, J., dissenting). Justice Powell’s concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government. See Johnson, supra, at 395–396 (Brennan, J., dissenting) (footnote omitted) (“In any event, the affirmance must not obscure that the majority of the Court remains of the view that, as in the case of every specific of the Bill of Rights that extends to the States, the Sixth Amendment’s jury trialguarantee, however it is to be construed, has identical application against both State and Federal governments.")

Thus, in Ramos v. Louisiana, the Court is set to address this "exception to the general rule" and decide whether jury unanimity is required in a criminal case in state court to the same extent as in federal court pursuant to the Fourteenth Amendment.

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Daily Read: Plessy v. Ferguson Revisited

In his essay review of the new book Separate: The Story of Plessy v. Ferguson, and America's Journey from Slavery to Segregation by Steve Luxenberg, critic Louis Menand retells the history of the Plessy v. Ferguson decision: infamous in hindsight but unnoticed in its time. Menand remarks, “even when principal figures in the case died, years later, their obituaries made no mention of it.” Menand contextualizes the case within the post-Reconstruction Jim Crow south and examines Plessy’s role in enshrining white supremacy.

Menand provides a rich discussion of Luxenberg’s hefty book (at 624 pages) which focuses its narrative on three key players in Plessy v. Ferguson: “Albion Tourgée, one of Plessy’s lawyers; Henry Billings Brown, the Justice who wrote the majority opinion; and John Marshall Harlan, who filed the lone dissent.” Menand’s assessment of the book is mixed. For example, Menand writes that the book is

deeply researched, and it wears its learning lightly. It’s a storytelling kind of book, the kind of book that refers to Albion Tourgée as Albion and John Harlan as John, and that paints the scene for us (“On a bright and beautiful night in late October 1858 . . . ”). Luxenberg does not engage in psychological interpretation. He doesn’t mention, for instance, that [Justice Henry Billings] Brown’s Yale classmates called him Henrietta because they thought he was effeminate—which might have contributed to Brown’s eagerness not to appear like a man who didn’t belong. And he dismisses in a footnote speculation that Robert Harlan, a man of mixed race who grew up as a member of John Harlan’s family, might have been a half brother. Even if he wasn’t in fact related to John, however, it might have mattered if John believed otherwise.

In short, Menand concludes that while the book is a "different way to tell the story,"  it "does not give us a new story," and observes that it "does seem a misjudgment to tell the story of an important civil-rights case as the story of three white men."

But while Menand argues that the book doesn't ultimately help with "the big historical questions," it is clear from Menand's review that the book offers deep insights into the case that constitutionalized racial segregation as equality.  In Plessy, the United States Supreme Court betrayed the promise — and meaning — of the the Fourteenth and Thirteenth Amendments to the Constitution.  By focusing at the legal actors who participated in the case, including Tourgée who argued for Plessy, Luxenberg's book is sure to attract attention from constitutional scholars and students.  I look forward to reading it.

 

Third Circuit Upholds New Jersey's Large Capacity Magazine Prohibition

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

In its opinion in Association of New Jersey Rifle and Pistol Clubs v. Attorney General of New Jersey, a divided panel of the Third Circuit rejected a challenge to New Jersey's prohibition of large capacity magazines (LCM), defined as magazines capable of holding more than ten rounds of ammunition, N.J. Stat. Ann. 2C:39-1(y), 2C:39-3(j).  The challengers sought a preliminary injunction based on violations of the Second Amendment, the Equal Protection Clause, and the Fifth Amendment's Taking Clause; after an evidentiary hearing the district judge denied the injunction.

On the Second Amendment claim, the Third Circuit majority agreed with the general analysis laid out by the Second Circuit in New York State Rifle & Pistol Ass’n, Inc. v. Cuomo (2015). Judge Patty Shwartz, writing for the majority, first determined that a "magazine" is an arm regulated under the Second Amendment. Judge Shwartz then considered whether the regulation of a specific type of magazine, namely an LCM, “imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee," by inquiring whether the type of arm at issue is commonly owned, and “typically possessed by law-abiding citizens for lawful purposes." The court noted that the record showed there were "millions" of such magazines and then assumed "without deciding that LCMs are typically possessed by law-abiding citizens for lawful purposes and that they are entitled to Second Amendment protection." The court then turned to the level of scrutiny to be applied — a question left open by the Court in Heller v. D.C. — by inquiring how severely the challenged regulation "burdens the core Second Amendment right."

Here, the court held that the New Jersey law did not severely burden the core Second Amendment right to self-defense in the home for five reasons and thus determined that intermediate scrutiny should apply. The court then held that the State of New Jersey has, undoubtedly, a significant, substantial and important interest in protecting its citizens’ safety," including reducing the lethality of active shooter and mass shooting incidents. The court rejected the challengers' argument that the rarity of such incidents should negate the state's interest, finding instead that the "evidence adduced before the District Court shows that this statement downplays the significant increase in the frequency and lethality of these incidents."  The court further found that the LCM ban was a sufficiently close fit to the state's interest in promoting safety.

It was on the Second Amendment issue that Judge Stephanos Bibas dissenting, arguing that strict scrutiny should apply and that even if it does not, the New Jersey statute fails intermediate scrutiny. For Judge Bibas, although the majority stands in good company: five other circuits have upheld limits on magazine sizes," the courts err "in subjecting the Second Amendment to different, watered-down rules and demanding little if any proof."

While the Second Amendment challenge was at the heart of the case, the majority also rejected the challengers' claims under the Takings Clause and the Equal Protection Clause. On the Takings Clause, the majority held that there is not actual taking, and no "regulatory taking because it does not deprive the gun owners of all economically beneficial or productive uses of their magazines." On the Equal Protection Clause, the challengers faulted the Act because it allows retired law enforcement officers to possess LCMs while prohibiting retired military members and ordinary citizens from doing so.The majority did not engage in a robust analysis, but held that "retired law enforcement officers are not similarly situated to retired military personnel and ordinary citizens, and therefore their exemption from the LCM ban does not violate the Equal Protection Clause."

In short, the Third Circuit's opinion is part of a trend of determining that intermediate scrutiny applies to various regulations of high capacity firearms or magazines and upholding state regulation. Most likely a petition for certiorari will follow this opinion and it will be interesting to see whether the United States Supreme Court continues its own trend of denying such petitions.

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SCOTUS Hears Oral Argument in Excessive Fines and Forefeiture Case

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

The United States Supreme Court heard oral arguments in Timbs v. Indiana, raising the issue of whether the Eighth Amendment's prohibition of "excessive fines" is incorporated as against the States and how this relates to forfeitures. The underlying facts in the case involve the forfeiture of a Land Rover.  Recall that the Indiana Supreme Court rejected an excessive fines challenge under the Eighth Amendment concluding that "the Excessive Fines Clause does not bar the State from forfeiting Defendant's vehicle because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment." 

As to the incorporation argument, some Justices seemed skeptical that there was any plausible argument that the Excessive Fines Clause should not be incorporated. Justice Gorsuch quickly intervened in the Indiana Solicitor General's argument: "can we just get one thing off the table? We all agree that the Excessive Fines Clause is incorporated against the states." 

The Indiana Solicitor General did not concede this point, even after being pressed. Instead, the Indiana Solicitor General argued that the question of incorporation — including the test of whether the right is so deeply rooted in this nation's history and traditions and whether the right is implicit in the concept of ordered liberty as to be fundamental — rests on the articulation of the right as including forfeiture as the Court held in Austin v. United States (1993). Indeed, the Indiana Solicitor General suggested that the Court should overrule Austin.

The relationship between the incorporation of the right and the scope of the right permeated the argument. As Justice Kagan observed to the Indiana Solicitor General, there were two questions:

And one question is incorporating the right, and the other question is the scope of the right to be incorporated.

And, really, what you're arguing is about the scope of the right.

On the other hand, Chief Justice Roberts, responding to the argument of Wesley Hottot on behalf of the petitioner Tyson Timbs, stated that the collapse of the two questions was to ask the Court to "buy a pig in a poke," to just hold that the right is incorporated and later figure out what it means.

In his rebuttal, Mr. Hottot argued that the case was about "constitutional housekeeping," adding that while the Court had "remarked" five times over the last 30 years that the "freedom from excessive economic sanctions should be applied to the states," it had never explicitly so held. 

If the oral argument is any indication, the Court seems poised to rule that the Excessive Fines Clause is incorporated through the Fourteenth Amendment's Due Process Clause.

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