Thursday, January 2, 2020
In their article, Reconstituting the Future: The Equality Amendment, well-known feminist theorists Catharine A. MacKinnon & Kimberlé W. Crenshaw have argued that equality needs to be re-envisioned in an intersectional and progressive manner requiring constitutional amendment. In the Yale Journal Law Forum they contend their proposal
centers on rectifying the founding acts and omissions of race and sex, separately and together, and incorporates similar but distinct inequalities. It is informed by prior efforts to integrate equality into the constitutional landscape that have been decimated by political reversals and doctrinal backlash. It aggregates the insights, aspirations, and critiques of many thinkers and actors who have seized this moment to breathe new life into the nation’s reckoning with inequality. It neither looks back to celebrate amendments whose transformative possibilities have been defeated nor participates in contemporary hand-wringing over equality’s jurisprudential limitations. It seeks to make equality real and to matter now. We argue that a new equality paradigm is necessary and present one form it could take.
The article elaborates on the rationales for each section. The entire proposed amendment reads:
The Equality Amendment
Whereas all women, and men of color, were historically excluded as equals, intentionally and functionally, from the Constitution of the United States, subordinating these groups structurally and systemically; and
Whereas prior constitutional amendments have allowed extreme inequalities of race and/or sex and/or like grounds of subordination to continue with-out effective legal remedy, and have even been used to entrench such inequalities; and
Whereas this country aspires to be a democracy of, by, and for all of its people, and to treat all people of the world in accordance with human rights principles;
Therefore be it enacted that—
Section 1. Women in all their diversity shall have equal rights in the United States and every place subject to its jurisdiction.
Section 2. Equality of rights shall not be denied or abridged by the United States or by any State on account of sex (including pregnancy, gender, sexual orientation, or gender identity), and/or race (including ethnicity, national origin, or color), and/or like grounds of subordination (such as disability or faith). No law or its interpretation shall give force to common law disadvantages that exist on the ground(s) enumerated in this Amendment.
Section 3. To fully realize the rights guaranteed under this Amendment, Congress and the several States shall take legislative and other measures to prevent or redress any disadvantage suffered by individuals or groups because of past and/or present inequality as prohibited by this Amendment, and shall take all steps requisite and effective to abolish prior laws, policies, or constitutional provisions that impede equal political representation.
Section 4. Nothing in Section 2 shall invalidate a law, program, or activity that is protected or required under Section 1 or 3.
This just-published relatively brief (22 pages) essay would make a terrific addition to any Constitutional Law syllabus, as well as any course in Feminist Legal Theory or Gender and Law.
pictured: Professors Crenshaw (left) & MacKinnon (right)
January 2, 2020 in Comparative Constitutionalism, Courts and Judging, Equal Protection, Fourteenth Amendment, Gender, Interpretation, Privacy, Race, Recent Cases, Scholarship | Permalink | Comments (0)
Monday, December 23, 2019
The United States Supreme Court granted certiorari to two Ninth Circuit cases and consolidated them: Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel.
Both cases involve an application of the First Amendment's "ministerial exception" first accepted by the Court in 2012 in Hosana-Tabor Evangelical Lutheran Church and School v. EEOC. In the unanimous decision in Hosanna-Tabor, the Court found that the school teacher Cheryl Perich was tantamount to a minister. Thus, under both Religion Clauses of the First Amendment, as a "minister" her employment relations with her church school employer were eligible for a "ministerial exception" to the otherwise applicable employment laws, in that case the Americans with Disabilities Act.
But who is a "ministerial" employee subject to the exemption from employment laws?
Chief Justice Roberts' opinion for the Court in Hosanna-Tabor declined to provide a test for deciding whether or not an employee was within the ministerial exception. However, the Court did extensively analyze Cheryl Perich's employment. And the lower courts have been struggling with how to analogize to the Court's conclusions regarding the "called teacher" Perich.
In the unpublished and very brief panel opinion in Morrisey-Berru, the court stated that the Court in Hosanna-Tabor considered four factors in analyzing whether the exception applied:
- (1) whether the employer held the employee out as a minister by bestowing a formal religious title;
- (2) whether the employee’s title reflected ministerial substance and training;
- (3) whether the employee held herself out as a minister; and
- (4) whether the employee’s job duties included “important religious functions.”
Applying those factors, the Ninth Circuit panel stated:
Considering the totality of the circumstances in this case, we conclude that the district court erred in concluding that Morrissey-Berru was a “minister” for purposes of the ministerial exception. Unlike the employee in Hosanna-Tabor, Morrissey-Berru’s formal title of “Teacher” was secular. Aside from taking a single course on the history of the Catholic church, Morrissey-Berru did not have any religious credential, training, or ministerial background. Morrissey-Berru also did not hold herself out to the public as a religious leader or minister.
Morrissey-Berru did have significant religious responsibilities as a teacher at the School. She committed to incorporate Catholic values and teachings into her curriculum, as evidenced by several of the employment agreements she signed, led her students in daily prayer, was in charge of liturgy planning for a monthly Mass, and directed and produced a performance by her students during the School’s Easter celebration every year. However, an employee’s duties alone are not dispositive under Hosanna-Tabor’s framework. See Biel v. St. James Sch. (9th Cir. 2018). Therefore, on balance, we conclude that the ministerial exception does not bar Morrissey-Berru’s ADEA claim.
Biel, relied upon in Morrisey-Berru's unpublished opinion, was much more contentious. Reversing the district court, the Ninth Circuit panel's opinion in Biel similarly considered four factors from Hosanna-Tabor and applying them to the school teacher Kristen Biel concluded that she was not a ministerial employee. For the panel in Biel, she
by contrast, has none of Perich’s credentials, training, or ministerial background. There was no religious component to her liberal studies degree or teaching credential. St. James had no religious requirements for her position. And, even after she began working there, her training consisted of only a half-day conference whose religious substance was limited. Unlike Perich, who joined the Lutheran teaching ministry as a calling, Biel appears to have taken on teaching work wherever she could find it: tutoring companies, multiple public schools, another Catholic school, and even a Lutheran school.
Also in contrast to Perich, nothing in the record indicates that Biel considered herself a minister or presented herself as one to the community. She described herself as a teacher and claimed no benefits available only to ministers.
Only with respect to the fourth consideration in Hosanna-Tabor do Biel and Perich have anything in common: they both taught religion in the classroom. Biel taught lessons on the Catholic faith four days a week. She also incorporated religious themes and symbols into her overall classroom environment and curriculum, as the school required. We do not, however, read Hosanna-Tabor to indicate that the ministerial exception applies based on this shared characteristic alone. If it did, most of the analysis in Hosanna-Tabor would be irrelevant dicta, given that Perich’s role in teaching religion was only one of the four characteristics the Court relied upon in reaching the conclusion that she fell within the ministerial exception.
And even Biel’s role in teaching religion was not equivalent to Perich’s.. . .
The panel's opinion in Biel was not unanimous. A dissenting judge would have held that Biel was a minister in large part because her teaching duties at a Catholic school included religious teachings; the judge was "struck by the importance of her stewardship of the Catholic faith to the children in her class. Biel’s Grade 5 Teacher title may not have explicitly announced her role in ministry, but the substance reflected in her title demonstrates that she was a Catholic school educator with a distinctly religious purpose."
The petition for rehearing en banc was denied, but with a lengthy dissenting opinion by Judge R. Nelson joined by an addition eight Ninth Circuit Judges - - - that's nine Judges dissenting. Judge Nelson's opinion argues that the panel opinion in Biel (as well as the opinion in Morrisey-Berru) had taken the narrowest possible interpretation of Hosanna-Tabor, so narrow as to have "excised the ministerial exception, slicing through constitutional muscle and now cutting deep into core constitutional bone." For the dissenting judges,
In turning a blind eye to St. James’s religious liberties protected by both Religion Clauses, we exhibit the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid.
With the Court's grant of certiorari in Biel and Morrisey-Berru, perhaps there will be more clarity regarding the factors of Hosanna-Tabor and how they should be applied to teachers in private schools run by religious organizations.
The facts of Biel may strike many as particularly sympathetic: Kristen Biel was diagnosed with breast cancer and terminated when she said she would have to take some time off work when she underwent chemotherapy. St. James's principal, Sister Mary Margaret, told Biel it was not "fair" "to have two teachers for the children during the school year.” If she had worked for a nonreligious school, Biel would have been protected by the Americans with Disabilities Act.
The Court is set to decide whether Biel and seemingly almost every teacher at a private school operated by a religious organization should be excluded from the employment protections afforded other workers.
[image "Chalk Lessons, or the Black-board in the Sunday School. A Practical Guide for Superintendents and Teachers" by Frank Beard (1896), via]
Monday, November 4, 2019
In a 28 page complaint filed in New York state courts opening the case Carroll v. Trump, E. Jean Carroll has sued the president for one count of defamation.
The argument is that the president is "sued here only in his personal capacity" and implicitly that there is no presidential immunity, noting cases in which President Trump has been a plaintiff in his personal capacity, and further citing "a related case" of Zervos v. Trump in which Trump is a defendant. Recall that a New York appellate court considering Zervos earlier this year held that Trump was not immunized from defending a lawsuit in state court.
Interestingly, this paragraph avers that Trump is a "resident" of New York; Trump announced a few days ago that he had filed a "declaration of domicile" in Florida. There are other aspects of personal jurisdiction and there is no amount in the complaint that might satisfy the threshold for removal to federal court for diversity purposes.
The complaint provides a compelling explanation of E. Jean Carroll's silence about the 1995 or 1996 event in which she alleges Trump raped her in a department store dressing room as well as the rationales for changing her mind, including the death of her mother and the burgeoning #MeToo movement response to Harvey Weinstein.
As to the substantive allegations, Carroll highlights three statements — made on June 21, 22, and 24 — that were widely disseminated and accused Carroll of lying about the incident, of inventing the incident for book sales, of inventing the incident for a "political agenda," of lying about incidents with other men, and stating that Trump did not know her, had never met her, and that she was "not his type." On reputational damages, the complaint avers that since the defamation she lost the "support and goodwill" of many of the readers of her advice column, resulting in "roughly 50% fewer letters" to which she could respond, noting that as an advice columnist she requires a "steady flood of compelling letters" seeking her advice.
Expect Trump's answer — or more probably motion to dismiss — to raise the same immunity defense as in Zervos despite the appellate court decision and perhaps a jurisdictional argument.
Friday, June 7, 2019
In its unanimous opinion in State of Washington v. Arlene's Flowers, the Washington Supreme Court concluded there was no First Amendment infringement when the state found Arlene's Flowers violated the Washington Law Against Discrimination (WLAD), by refusing to sell wedding flowers to a same-sex couple.
Recall that in June 2018, the United States Supreme Court without opinion, in Arlene's Flowers v. Washington, granted the petition for writ of certiorari, vacated the judgment of the Washington Supreme Court, and remanded the case for consideration in light of its decision earlier than month in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n. Given the holding in Masterpiece Cakeshop that the Colorado Civil Rights Commission, or one specific commissioner, exhibited "hostility" to the cakemaker in that case, the Washington Supreme Court was now tasked with determining whether there was a similar hostility towards the religion of the florist in Arlene's Flowers, Baronnelle Stutzman, and if so, applying strict scrutiny.
The Washington Supreme Court, on page 2 of its 76 page opinion, proclaimed: "We now hold that the answer to the Supreme Court's question is no; the adjudicatory bodies that considered this case did not act with religious animus when they ruled that the florist and her corporation violated the Washington Law Against Discrimination . . . ."
The Washington Supreme Court's lengthy opinion admittedly includes passages from its 2017 opinion which thoroughly discussed and applied the First Amendment standards, but it also carefully delves into the question of government hostility toward religion. The court found irrelevant one contested incident involving the Attorney General of Washington which occurred after the Washington Supreme Court's 2017 opinion, noting that the issue was one of adjudicatory animus and not executive branch animus; any claim that there was selective prosecution lacked merit. The Washington Supreme Court also rejected Stutzman's claim that the scope of the injunction in the 2017 opinion mandated that Stutzman "personally attend and participate in same-sex weddings."
The Washington Supreme Court's opinion concludes that "After careful review on remand, we are confident that the courts resolved this dispute with tolerance, and we therefore find no reason to change our original judgment in light of Masterpiece Cakeshop. We again affirm the trial court's rulings."
It is a solid well-reasoned unanimous opinion, but given this hard-fought and well-financed litigation, it's likely that Arlene's Flowers will again petition the United States Supreme Court for certiorari.
image: Vincent Van Gogh, Twelve Sunflowers in a Vase, circa 1887, via.
June 7, 2019 in Courts and Judging, Family, Federalism, First Amendment, Fourteenth Amendment, Gender, Opinion Analysis, Recent Cases, Religion, Sexual Orientation, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)
Friday, May 31, 2019
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.
Monday, March 18, 2019
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.
March 18, 2019 in Criminal Procedure, Due Process (Substantive), Federalism, Fourteenth Amendment, Fundamental Rights, Privileges or Immunities: Fourteenth Amendment , Recent Cases, Supreme Court (US) | Permalink | Comments (0)
Monday, February 25, 2019
In his opinion in National Coalition for Men v. Selective Service System, Judge Gray Miller of the United States District Court for the Southern District of Texas found that the Military Selective Service Act (MSSA) provision, 50 USC §3802(a), requiring males (but not females) between the ages of 18 and 26 to register with the Selective Service System (SSS) violated equal protection, as applicable to the federal government through the Fifth Amendment's Due Process Clause.
Judge Miller first rejected the Government's Motion to Stay, concluding that the case was ripe, as it involved only a question of law, and that considerations of separation of powers and discretionary power of the court did not merit a stay. Judge Miller noted that Congress "has been debating the male-only registration requirement since at least 1980 and has recently considered and rejected a proposal to include women in the draft."
At the heart of this litigation is Rostker v. Goldberg (1981) in which the United States Supreme Court upheld the constitutionality of the male-only selective service registration based on its reasoning that because women were not statutorily eligible for combat, men and women were not "similarly situated" for purposes of the draft. The Government argued that Rostker should control. But, as Judge Miller stated, in the nearly four decades since Rostker "women's opportunities in the military have expanded dramatically" and in 2013, the Department of Defense officially lifted the ban on women in combat and in 2015 "lifted all gender-based restrictions on military service." Judge Miller also rejected the Government's argument based on Trump v. Hawai'i (2018), that there should be considerable deference, finding "the Trump decision is tangential, at best."
Thus, Judge Miller applied the intermediate scrutiny merited by sex classifications as articulated by the Court most recently in Sessions v. Morales-Santana (2017), and using the language of United States v. Virginia (VMI) (1996): "The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females."
Judge Miller rejected both of the Government's two asserted interests. First, the Government argued that women's eligibility to serve in combat is distinct from the women's conscription because conscription could lead to trade-offs for the military, meaning that requiring women to register for the draft could affect women's enlistment by increasing the perception that they would be required to serve in combat. Judge Miller found that this argument "smacks of 'archaic and overbroad generalizations' about women's preferences." Additionally, Judge Miller observed that this argument "appears to have been created for litigation." Second, the Government argued that Congress preserved the male-only registration requirement out of concern for the administrative burden of registering and drafting women for combat. But even if women are statistically less physically suited for combat,
the relevant question is not what proportion of women are physically eligible for combat—it may well be that only a small percentage of women meets the physical standards for combat positions. However, if a similarly small percentage of men is combat-eligible, then men and women are similarly situated for the purposes of the draft and the MSSA’s discrimination is unjustified. Defendants provide no evidence that Congress ever looked at arguments on this topic and then made a “studied choice” between alternatives based on that information.
Had Congress compared male and female rates of physical eligibility, for example, and concluded that it was not administratively wise to draft women, the court may have been bound to defer to Congress’s judgment. Instead, at most, it appears that Congress obliquely relied on assumptions and overly broad stereotypes about women and their ability to fulfill combat roles.“ Thus, Defendants’ second proffered justification appears to be an “accidental by—product of a traditional way of thinking about females,”’ rather than a robust, studied position.
Judge Miller issued a declaratory judgment that the male-only draft violates equal protection, but did not issue an injunction because the Plaintiffs did not request or brief it in their summary judgment motion and materials.
[image: Viet Nam War era draft card via]
Wednesday, February 20, 2019
In its unanimous opinion in Timbs v. Indiana, the United States Supreme Court held that the Excessive Fines Clause of the Eighth Amendment is applicable to the states through the Fourteenth Amendment.
Recall that the oral argument heavily pointed toward this outcome. While there was some discussion during oral argument about the relationship between excessive fines and civil in rem forfeiture, the Court's opinion, authored by Justice Ginsburg, rejected Indiana's attempt to "reformulate the question" to one focused on civil asset forfeitures. This was not the argument that the Indiana Supreme Court ruled upon. Moreover, the question of incorporation is not dependent on whether "each and every particular application" of a right passes the incorporation test, using as an example the Court's unanimous opinion in Packingham v. North Carolina (2017), in which the Court did not ask whether the First Amendment's "application to social media websites was fundamental or deeply rooted."
Instead, the Court clearly held that the "safeguard" of the Excessive Fines Clause of the Eighth Amendment is "fundamental to our scheme of ordered liberty" with "deep roots in [our] history and tradition," citing McDonald v. Chicago (2010), the Court's most recent incorporation case. In an opinion of less that ten pages, Ginsburg discusses the Magna Carta, the English Bill of Rights after the Glorious Revolution, the inclusion of the Clause in colonial constitutions and in state constitutions at the time of the Fourteenth Amendment, the misuse of excessive fines in Black Codes, and the current inclusion of the provision in the constitutions of all 50 states.
Justice Thomas, in a concurring opinion longer than the Court's opinion, reiterates the position he articulated in McDonald v. Chicago that it should not be the Due Process Clause of the Fourteenth Amendment that is the vehicle for incorporation but the Privileges or Immunities Clause. Justice Gorsuch writes a separate and very brief concurring opinion acknowledging that the appropriate vehicle for incorporation "may well be" the Fourteenth Amendment's Privileges or Immunities Clause, but "nothing in this case turns on that question."
Given that this is a unanimous opinion, unlike McDonald in which Justice Thomas was necessary to the five Justice majority regarding the incorporation of the Second Amendment, the attempt to resurrect the Privileges or Immunities Clause carries little precedential weight.
Thus, now the only rights enumerated in the Bill of Rights that are not incorporated through the Fourteenth Amendment to the states are: the Third Amendment prohibiting quartering of soldiers, Fifth Amendment right to a grand jury indictment in a criminal case; and the Seventh Amendment right to a jury trial in civil cases.
February 20, 2019 in Due Process (Substantive), Federalism, Fourteenth Amendment, Opinion Analysis, Privileges or Immunities: Fourteenth Amendment , Recent Cases, Supreme Court (US) | Permalink | Comments (0)
Friday, February 15, 2019
In its opinion in Free the Nipple v. City of Fort Collins, the Tenth Circuit upheld the district judge's preliminary injunction against a public-nudity ordinance that imposes no restrictions on male "toplessness" but prohibits women from baring their breasts below the areola, Fort Collins, Colo., Mun. Code § 17-142 (2015). The district judge dismissed the First Amendment challenge, but later found that the plaintiffs had a likelihood of success on their Equal Protection Clause challenge and that a preliminary injunction from enforcing the statute was warranted.
Writing for the majority, Judge Gregory Phillips relied heavily on the United States Supreme Court's most recent decision on equal protection and gender, Sessions v. Morales-Santana (2017). The majority first concluded that as a gender-based classification, the ordinance merited intermediate scrutiny. While the city agreed the classification was gender-based, it had argued that only "invidious discrimination" on the basis of gender merited intermediate scrutiny. Judge Phillips noted that only when the classification is facially neutral but has disparate impact is the issue if "invidiousness" relevant.
The city also argued that women's and men's breasts had important physical differences. Judge Phillips considered several sources, adding that although the court was "wary of Wikipedia's user-generated content," it agreed with the district judge that there were inherent physical differences between men's and women's breasts, but "that doesn't resolve the constitutional question." Instead, the majority opinion stressed that the court should beware of such generalizations and their potential to "perpetuate inequality."
In its application of intermediate scrutiny, the majority analyzed the three interests asserted by the city:
- protecting children from public nudity,
- maintaining public order, and
- promoting traffic safety.
As to protecting children, the majority agreed with the district judge's finding quoting experts that the city's interest rested on negative stereotypes and citing Morales-Santana, the majority concluded that "laws grounded in stereotypes about the way women are serve no important governmental interest."
As to public order and traffic safety, the majority agreed that in "the abstract," these were both important governmental interests. However, the court stated that it suspected that the city was actually more concerned with the sex-object stereotype that the district judge had described, quoting experts. Moreover, it noted that the cases which the city relied upon held that the "nebulous concepts of public morality" actually justified the ban rather than interests in public order or traffic safety. The majority also concluded that the female-only toplessness ban was overbroad - and suggested that the city could "abate sidewalk confrontations by increasing the penalties for engaging in offensive conduct." In other words, the majority concluded that rather than criminalize women's behavior because it might incite some people, the city could criminalize people who acted on their incitement.
The majority candidly recognized that it had the "minority viewpoint" and other courts in divided opinions - including the Seventh Circuit - have rejected such challenges.
In dissent, Judge Harris Hartz argued that intermediate scrutiny should not apply at all, in part because there are real differences between men and women as to their breasts, and that intermediate scrutiny should not be diluted by applying it in this instance. Instead, Judge Hartz argued that only rational basis should apply, which the ordinance easily passed.
The constitutionality of sex-specific nudity bans that apply to women's breasts is long-standing: our earlier discussion is here, linking to a discussion from Dressing Constitutionally about the 1992 New York case which the majority cites. Yet with the split between the Tenth and Seventh Circuits now apparent, it may be ripe for United States Supreme Court resolution.
[image: "Photograph of Gerald R. Ford, Jr., and Two Unidentified Men in Bathing Suits" via]
Tuesday, January 15, 2019
In its 277 page Opinion in New York v. United States Department of Commerce, United States District Judge Jesse Furman concludes by vacating and enjoining the implementation of the decision of Department of Commerce Secretary Wilbur Ross (pictured below) adding a citizenship question to the 2020 census questionnaire.
Recall that this challenge is one of several to the proposal to add a citizenship question to the 2020 census. Recall also that in July, Judge Furman denied in part motions to dismiss and allowed the case to proceed. Judge Furman also allowed discovery in the form of a deposition of Wilbur Ross, an order which was stayed and is now before the United States Supreme Court: oral argument in Department of Commerce v. USDC Southern District of New York is scheduled for February 19, 2019, with the question presented as under the Administrative Procedure Act.
Here New York joins seventeen other state plaintiffs, the District of Columbia, as well as six cities and the United States Conference of Mayors, and the case is consolidated with New York Immigration Coalition v. United States Department of Commerce, with NGO plaintiffs. The claims involve the "actual enumeration" requirements in the Constitution, Art. I, § 2, cl. 3, and Amend. XIV, § 2, as well as the Administration Procedure Act, with the NGO plaintiffs also raising a Due Process/Equal Protection claim which Judge Furman considered. The case was heard by Judge Furman in an eight day bench trial, despite, as Judge Furman's opinion phrases it the Defendants who have "tried mightily to avoid a ruling on the merits of these claims."
Judge Furman's lengthy opinion helpfully contains a table of contents which serves as an outline for the complicated facts and process involved in the case.
A large portion of Judge Furman's opinion is devoted to the constitutional question of standing. This Article III issue — requiring an injury in fact, fairly traceable to the challenged conduct of the defendant, and that is likely to be redressed by a favorable judicial decision — is in essence a question of the Enumeration Clause problem. In other words, to prove injury in fact, the Plaintiffs must prove that the addition of the citizenship question would impact enumeration in a particular way, or "cause a differential decline" in self-response rates which would not be cured, and which would effect apportionment and other matters. For Judge Furman, these and other claims, including a diversion of resources, harm to the quality of data used in intrastate policies, were sufficient to confer standing to the states. Additionally, Judge Furman addressed and found for the most part associational standing for the NGO plaintiffs.
On the merits, Judge Furman rested his decision on the APA claims, including that the decision violated provisions of the APA, was arbitrary and capricious, and most unusually, pretextual.
The evidence in the Administrative Record and the trial record, considered separately or together, establishes that the sole rationale Secretary Ross articulated for his decision — that a citizenship question is needed to enhance DOJ’s VRA enforcement efforts — was pretextual.
Judge Furman found that the "presumption of regularity" was rebutted here.
However, Judge Furman found that the equal protection claim (as part of Due Process Clause of the Fifth Amendment) as pressed by the NGO plaintiffs could not be sustained. Essentially, Judge Furman found that there was not sufficient proof that the pretextual decision was a pretext for discriminatory intent necessary under equal protection, as had been alleged and survived the motion to dismiss, but which now — without the deposition of Wilbur Ross — was not possible to prove, at least not yet.
Judge Furman justified the remedy of injunction thusly:
Measured against these standards, Secretary Ross’s decision to add a citizenship question to the 2020 census — even if it did not violate the Constitution itself — was unlawful for a multitude of independent reasons and must be set aside. To conclude otherwise and let Secretary Ross’s decision stand would undermine the proposition — central to the rule of law — that ours is a “government of laws, and not of men.” John Adams, Novanglus Papers, No. 7 (1775). And it would do so with respect to what Congress itself has described as “one of the most critical constitutional functions our Federal Government performs.” 1998 Appropriations Act,
§ 209(a)(5), 111 Stat. at 2480-81.
The government is sure to appeal.
Friday, January 4, 2019
The Court has ordered oral arguments set for March on the merits of two cases involving the recurring issue of the constitutionality of partisan gerrymandering, Rucho v. Common Cause and Lamone v. Benisek.
Both cases have extensive histories including previous appearances before the Supreme Court.
From North Carolina is Rucho v. Common Cause. In January 2018, a three-judge Court's extensive opinion found North Carolina's 2016 redistricting plan was unconstitutional partisan gerrymandering under the Equal Protection Clause, the First Amendment, and Article I §§ 2, 4. The United States Supreme Court stayed the judgment shortly thereafter, and then vacated the opinion in light of Gill v. Whitford (2018). In July 2018, the three judge court entered an even more extensive opinion - 300 pages - finding that standing regarding an equal protection challenge was satisfied under the Gill standard. The Court also reiterated its conclusions of the unconstitutionality of partisan gerrymandering, and enjoined the State from conducting any elections using the 2016 Plan in any election after the November 6, 2018, election.
From Maryland is Lamone v. Benisek. In June 2018, the United States Supreme Court issued a brief per curiam opinion declining to disturb the three judge court's decision not to grant to a preliminary injunction, at the same time the Court rendered its Gill v. Whitford opinion, and essentially reserved the issue of partisan gerrymandering for another day.
It seems that day has come — or will soon — but whether or not the Court will actually grapple with the constitutionality of the problem of partisan gerrymandering is as yet uncertain.
[image: Anti-gerrymandering event at Supreme Court, October 2017, via]
Wednesday, December 5, 2018
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.
[image: double-drum magazine, which holds 100 rounds, via]
Thursday, October 4, 2018
In his opinion in Ramos v. Nielsen, United States District Judge Edward Chen of the Northern District of California enjoined the federal government's termination of TPS — Temporary Protected Status — designations for Haiti, Sudan, Nicaragua, and El Salvador.
As we previously discussed related to the NAACP complaint filed in January in Maryland and related only to Haiti, one argument is that the termination is a violation of equal protection, springing from an intent to discriminate on the basis of race and/or ethnicity.
Judge Chen's opinion finds that the preliminary injunction is warranted based on a likelihood of prevailing on the merits of an Administrative Procedure Act claim, but also on the merits of the equal protection claim. Judge Chen applied the factors from Village of Arlington Heights v. Metro. Hous. Development Corp., 429 U.S. 252 (1977), and concluded that there was sufficient evidence to
raise serious questions as to whether a discriminatory purpose was a motivating factor in the decisions to terminate the TPS designations. In particular, Plaintiffs have provided evidence indicating that (1) the DHS Acting Secretary or Secretary was influenced by President Trump and/or the White House in her TPS decision-making and (2) President Trump has expressed animus against non-white, non-European immigrants.
there were departures from the normal procedural sequence during the TPS decision-making process; that is, instead of considering all current country conditions as had been done in previous administrations, the DHS political appointees in the current administration made TPS decisions turn on whether the originating condition or conditions directly related thereto continued to exist, disregarding all other current conditions no matter how bad. Moreover, at the apparent behest of then-DHS Secretary Kelly, there was an effort to gather negative information about Haitian TPS beneficiaries prior to the decision on Haiti’s TP designation – in particular, whether Haitian TPS beneficiaries had been convicted of crimes or were on public or private relief. See Degen Decl., Ex. 84 (email). There is no indication that these factors had previously been considered by DHS in making TPS decisions; indeed, the email indicated that the request for the information should be kept quiet. See Degen Decl., Ex. 84 (email) (“Please keep the prep for this briefing limited to those on this email. If you need a specific data set and need to ask someone to pull it, please do not indicate what it is for. I don’t want this to turn into a big thing were people start prodding and things start leaking out.”). The information sought by the Secretary coincides with racial stereotypes – i.e., that non-whites commit crimes and are on the public dole.
This is yet another judicial finding that the administration has acted with racial animus and the administration is sure to appeal it.
[image: Kirstjen Nielsen, current Secretary of Department of Homeland Security]
Friday, September 28, 2018
In a Memorandum & Order in Students For Fair Admissions (SFFA) v. Harvard, United States District Judge Allison D. Burroughs has denied the cross-motions for summary judgment in this closely-watched case challenging affirmative action admissions at Harvard as discriminating against Asian-American applicants.
Although Harvard is a private university and the claim is under Title VI of the 1964 Civil Rights Act, 42 U.S.C. §2000d et. seq., the applicable precedent involves the constitutionality of affirmative action in higher education under the Equal Protection Clause. As Judge Burroughs explained in footnote 16 of the opinion:
[Defendant] Harvard notes that the Supreme Court has only addressed race-conscious admissions policies of public universities, and suggests that there are “good reasons to think that” the applicable Supreme Court precedent does not apply in the same manner to private universities like Harvard that are subject to Title VI. Because Harvard does not identify any specific reasons for distinguishing public universities from federally-funded private universities, or explain how the analytical framework would differ for private versus public litigants, the Court at this stage places Harvard on equal footing with a public university in applying Grutter [ v. Bollinger (2003)] and its progeny. See Grutter, 539 U.S. at 343 (“[T]he Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner’s statutory claims based on Title VI . . . also fail.”); id. (“Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment” (citing Regents of Univ. of California v. Bakke, 438 U.S. 265, 287 (1978))).
Thus, relying on Fisher v. University Texas at Austin (2013) (Fisher I) and Fisher v. University of Texas at Austin (2016) (Fisher II), as well as Grutter, Judge Burroughs held that strict scrutiny should apply.
After detailing the Harvard admissions policy as implemented and concluding that the case is not moot, Judge Burroughs considered the four claims by SFFA: intentional discrimination, racial balancing, race as a plus factor, and race-neutral alternatives.
First, Judge Burroughs concluded that the dueling reports by experts regarding the presence or absence of a negative effect of being Asian-American on the likelihood of admission essentially precluded summary judgment. The experts' contradictory conclusions derived in part from their "divergent modeling choices" and the "credibility of the expert witnesses in making these critical modeling and analytical choices is best evaluated at the upcoming bench trial." Moreover, "stray" positive and negative remarks were also best evaluated at trial.
Second, Judge Burroughs states that while "racial balancing" has been deemed unconstitutional, the parties present "plausible but conflicting interpretations" of Harvard's use of its own admissions data from previous years. Again, the matter of credibility would be paramount.
Third, SFFA argued that Harvard was not specifically employing the notion of "critical mass" and Harvard was not considering race as a mere "plus factor." Judge Burroughs concludes that there is no requirement of "critical mass" to satisfy strict scrutiny — the use of "critical mass" was simply part of the admissions policies of the universities in Michigan (in Grutter) and Texas (in Fisher). However, as to the use of race as a plus factor, Judge Burroughs noted that under Fisher II (and Fisher I), the university is entitled to no deference in whether its means chosen is narrowly tailored and thus again the issue of credibility and fact were best determined at trial.
Fourth and finally, SFFA's argument that Harvard has failed to consider race-neutral alternatives, there was a factual dispute regarding the timing of Harvard's reconsideration of such alternatives which coincided with the imminence of the lawsuit in 2014. SFFA's expert argued that Harvard "can easily achieve diversity by increasing socioeconomic preferences; increasing financial aid; reducing or eliminating preferences for legacies, donors, and relatives of faculty and staff; adopting policies using geographic diversity; increasing recruitment efforts; increasing community college transfers; and/or eliminating early action." The Harvard Committee reached the opposite conclusion.
In short, the litigation seems set to proceed to trial perhaps with a path to the United States Supreme Court.
Thursday, September 6, 2018
In its unanimous judgment and opinions in Johar v. Union of India, the Supreme Court of India has declared that §377 of the Indian Penal Code, which prohibited "carnal intercourse against the order of nature" is unconstitutional. The Court overruled the 2013 judgment in Koushal v. NAZ Foundation which we discussed here.
The opinions of the Court, totaling just short of 500 pages, rest the decision on Articles
- 14 (equality)
- 15 (prohibition of discrimination, including sex)
- 19 (protection of speech and association) and
- 21 (protection of liberty against deprivation without due process)
of the Constitution of India. The opinions include extensive discussions of cases from other nations and jurisdictions finding that criminalization of same-sex relations is unconstitutional, including Lawrence v. Texas (2003) in the United States, overruling Bowers v. Hardwick (1986).
History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.
The choice of "history" as being held accountable rather than the Court (and its previous opinion) may be deflective, but it is more of an acknowledgement that the United States Supreme Court gave in Lawrence (and which would have been arguably very appropriate).
Saturday, August 4, 2018
In his opinion in NAACP v. Trump, United States District Judge for the District of Columbia John Bates reaffirmed his earlier decision that the Presidential Order rescinding the DACA program was unlawful. Recall that Judge Bates' decision in April rested on an application of the Administrative Procedure Act (APA) finding that the decision by DHS to rescind DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood, was "arbitrary and capricious" because the Department failed adequately to explain its conclusion that the program was unlawful. Judge Bates stated that "neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program."
Judge Bates stayed the ruling, providing the United States Government 90 days to remedy the inadequacies of its rescission decision. The Government relied on a new Memorandum from Secretary Kirstjen M. Nielsen, but Judge Bates found that while the “Nielsen Memo”
purports to offer further explanation for DHS’s decision to rescind DACA, it fails to elaborate meaningfully on the agency’s primary rationale for its decision: the judgment that the policy was unlawful and unconstitutional. And while the memo offers several additional “policy” grounds for DACA’s rescission, most of these simply repackage legal arguments previously made, and hence are “insufficiently independent from the agency’s evaluation of DACA’s legality” to preclude judicial review or to support the agency’s decision. Finally, the memo does offer what appears to be one bona fide (albeit logically dubious) policy reason for DACA’s rescission, but this reason was articulated nowhere in DHS’s prior explanation for its decision, and therefore cannot support that decision now.
The "bona fide" but "logically dubious" rationale is a sentence in Secretary Nielsen's Memo that expresses a
judgment that DACA’s benefits—whatever they may be—are outweighed by the fact that, in Secretary Nielsen’s view, the policy encourages noncitizen children and their parents to enter the United States illegally. Of course, this rationale is not without its logical difficulties: after all, DACA is available only to those individuals who have lived in the United States since 2007, so the “tens of thousands of minor aliens” who Secretary Nielsen asserts have illegally entered the United States “in recent years” would not even be eligible under the program.
Yet for Judge Bates, this is improperly post-hoc and cannot rescue the DACA rescission from being arbitrary and capricious under the APA.
While other judges have reached the constitutional issues ( Recall that in February Judge Nicholas Garaufis of the Eastern District of New York granted a preliminary injunction against the rescission of DACA and also recall that Judge Alsup of the Northern District of California issued a preliminary injunction in January which the government is appealing), Judge Bates explicitly does not, stating that the decision does not hold "that DHS lacks the statutory or constitutional authority to rescind the DACA program," but only if it does so, it must provide a "rational explanation for its decision" under the APA rather than a "conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions."
In an interesting footnote, Judge Bates notes there is an ongoing debates regarding "the propriety of so-called nationwide injunctions," but then states that this "debate is not implicated here" because the court "is vacating an agency action pursuant to the APA, as opposed to enjoining it as a violation of the Constitution or other applicable law. " Judge Bates did continue the stay of the injunction, however, for an additional 20 days to allow the government to appeal.
Thursday, July 26, 2018
In an extensive and scholarly opinion in New York v. United States Department of Commerce consolidated with New York Immigration Coalition v. United States Department of Commerce, federal judge Jesse Furman has denied in part motions to dismiss and allowed the case to proceed.
Recall that the United States Commerce Department's announcement that the 2020 Decennial Census Questionnaire will include a citizenship question, which the census has not included since 1950, has provoked several challenges including the one filed in the Southern District of New York, New York v. United States Department of Commerce, raising constitutional objections on behalf of seventeen state plaintiffs, the District of Columbia, as well as six cities and the United States Conference of Mayors. The first count of the complaint is based on the "actual enumeration" requirement and avers that adding a citizenship question will "deter participation." The allegations in the complaint regarding the link between a citizenship demand and lower participation interestingly rely on the Census Bureau's own arguments and findings. The complaint alleges that consequences of lower participation is "an undercount" that will not reflect the accurate population of the plaintiffs, effecting their representation in the House of Representatives and the Electors. Two additional counts are based on the Administration Procedure Act.
The New York Immigration Coalition complaint has "five nongovernmental organizations" as plaintiffs, challenging the Secretary’s decision on the same grounds as the states' complaint but importantly on the additional ground of equal protection.
Judge Furman first found that the "government plaintiffs" and well as the "NGO plaintiffs" had standing and then rejected that the lawsuits were political questions barred from judicial review. As Judge Furman concluded:
the Court rejects Defendants’ attempts to insulate Secretary Ross’s decision to reinstate a question about citizenship on the 2020 census from judicial review. Granted, courts must give proper deference to the Secretary, but that does not mean that they lack authority to entertain claims like those pressed here. To the contrary, courts have a critical role to play in reviewing the conduct of the political branches to ensure that the census is conducted in a manner consistent with the Constitution and applicable law.
However, Judge Furman concluded that the Plaintiffs' claims under the Enumeration Clause must be dismissed. For Judge Furman, the constitutional text's broad language combined with a historical practice that has allowed many demographic questions and once included citizenship questions leads to the result that the Secretary has power to include a citizenship query. But as Judge Furman repeatedly emphasized, this does not end the issue. For example, as Judge Furman wrote:
to say that the Secretary has authority under the Enumeration Clauseto ask about citizenship on the census is not to say that the particular exercise of that authority here was constitutional or lawful. The Secretary cannot exercise his authority in a manner that would violate individual constitutional rights, such as the right to equal protection of the laws. [citations omitted]. Nor, under the APA, may he exercise his authority in a manner that would be “arbitrary” and “capricious.” 5 U.S.C. § 706(2)(A);[citation omitted]. Plaintiffs here make both kinds of claims, and the Court’s holding that the Secretary’s decision was consonant with the Enumeration Clause does not resolve those claims.
In his discussion of the equal protection claim (under the Fifth Amendment's inclusion of equal protection), Judge Furman relegated the animus argument to a footnote stating that it need not be discussed because he found that there was a sufficient claim for a denial of equal protection on the basis of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997). Judge Furman concluded that the allegations of discriminatory effect — that inclusion of the citizenship question for all respondents will bear, in the form of diminished political representation and reduced federal funding, more heavily on “Latinos, Asian-Americans, Arab-Americans, and other immigrant communities of color” because the non-response rate is likely to be higher in such communities — were sufficient.
As to the required intent, Judge Furman listed the Arlington Heights factors:
(1) “[t]he historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes”; (2) “[t]he specific sequence of events leading up the challenged decision”; (3) “[d]epartures from the normal procedural sequence”; (4) “[s]ubstantive departures . . . , particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached”; and (5) “[t]he legislative or administrative history . . . especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.”
and then discussed each one, focusing on departures from normal procedures (which "include overruling career staff who strongly objected to including the citizenship question, failing to extensively test reintroduction of the question, and ignoring the recommendation of the Census Bureau’s advisory committee") and specific statements, including statements of the President. Judge Furman rejected the federal goverment's argument that consideration of such statements was improper after Trump v. Hawaii, writing that the government's invocation of the case "falls somewhere between facile and frivolous," especially given its practice of truncated quotation. Instead, Judge Furman found
There is nothing in the Court’s opinion [in Trump v. Hawaii] to indicate that its deferential review applies outside of the “national security and foreign affairs context,” let alone that the Court meant to unsettle decades of equal protection jurisprudence regarding the types of evidence a court may look to in determining a government actor’s intent. In fact, even with its “circumscribed judicial inquiry,” the Hawaii Court itself considered “extrinsic evidence” — namely, President Trump’s own statements. If anything, therefore, Hawaii cuts against Defendants’ arguments rather than in their favor.
Judge Furman thus directed the parties to proceed with discovery, inform the court whether the cases should be consolidated, and whether a trial or summary judgment would be more appropriate.
Monday, June 25, 2018
The Court, without opinion, in Arlene's Flowers v. Washington, granted the petition for writ of certiorari, vacated the judgment of the Washington Supreme Court, and remanded the case for consideration in light of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n.
Recall that in 2017 the Washington Supreme Court unanimously upheld the Washington Law Against Discrimination including sexual orientation as applied to a business that refused to provide wedding flowers for a same-sex wedding. Artlene's Flowers had several First Amendment claims and on the Free Exercise claim, the court rejected Arlene's Flowers' argument that the Washington ant-discrimination law was not a neutral one of general applicability and should therefore warrant strict scrutiny. Instead, the court applied the rational basis standard of Employment Division, Department of Human Resources of Oregon v. Smith, which the Washington anti-discrimination easily passed.
Shortly after the Court's decision in Masterpiece Cakeshop, in which the Court found that the Colorado Civil Rights Commission’s treatment of the case had "some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his [the cakemaker's] objection," the florist in Arlene's Flowers, Baronnelle Stutzman, filed a Supplemental Brief seeking "at least" remand and alleging:
in ruling against Barronelle, the state trial court—at the urging of Washington’s attorney general—compared Barronelle to a racist “owner of a 7-Eleven store” who had “a policy” of refusing “to serve any black” customers. Pet. App. 107a–109a & 108a n.16 (emphasis added). The state, in short, has treated Barronelle with neither tolerance nor respect.
Thus the Washington Supreme Court is now tasked with determining whether there was hostility towards the Arlene's Flowers woner's religion, and if so, applying strict scrutiny.
Relatedly, in a challenge to Arizona's non-discrimination statute by a company, Brush & Nib, that sells "pre-fabricated and design artwork for home décor, weddings, and special events," an Arizona Court of Appeals found that there would be no Free Exercise claim in its opinion in Brush & Nib Studio v. City of Phoenix. Yet because Brush & Nib was a pre-enforcement challenge, the emphasis was on the statute rather than on Brush & Nib's actions.
Tuesday, April 24, 2018
The United States Supreme Court heard oral arguments in Abbott v. Perez, regarding the constitutionality under the Equal Protection Clause and the validity under the Voting Rights Act of the redistricting plan enacted by the Texas Legislature in 2013. Recall that in an extensive opinion in August 2017, the three judge court made detailed findings, one of which was that the Texas legislature engaged on intentional racial discrimination violating the Fourteenth Amendment.
Much of the argument centered on the acts of the Texas legislature in 2013 adopting maps which had previously been found invalid because of racial discrimination. Arguing for Texas, Scott Keller, the Texas Solicitor General, argued that the Texas legislature was entitled to a presumption of good faith and that the "taint" did not carry forward, and Edwin Kneedler, from the United States Solicitor General's Office, likewise stressed that the "taint" should not carry forward. Arguing for various challengers to the redistricting, Max Hicks and Allison Riggs, both stressed the standard of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997), contending that the taint does not end, and stressing the extensive findings by the three judge court.
The question of how long a discriminatory intent taint persists sometimes seemed as if it was a preview of the next oral argument, that in Hawai'i v. Trump.
Yet the oral arguments in Abbott v. Perez were also preoccupied with the "jurisdictional" question; Chief Justice Roberts at several points directed the parties to move to the merits. This jurisdictional question involves the status of the three judge court order and whether it is actually a reviewable order. Recall that the order was not a preliminary injunction, but instead the court directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered." Justice Breyer suggested that the operable "piece of paper" in the case was not a judgment or preliminary injunction, but only a direction to come to court.
While jurisdictional issues are always important to the Court, when the jurisdiction involves appeals as of right from three judge court decisions, the stakes are higher in terms of workload. As Justice Sotomayor asked, what distinguishes this case from the "millions of others - - - not millions, I'm exaggerating greatly - - - the hundreds of these . . . ."
April 24, 2018 in Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Race, Recent Cases, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0)
Thursday, April 19, 2018
In its opinion in Planned Parenthood of Greater Ohio v. Himes, a unanimous Sixth Circuit panel, affirming the district judge, found Ohio 's Revised Code § 3701.034 unconstitutional under the unconstitutional conditions doctrine. The Ohio statute prohibited all funds it receives through six non-abortion-related federal health programs, such as the Violence Against Women Act, from being used to fund any entity that performs or promotes nontherapeutic abortions, or becomes or continues to be an affiliate of any entity that performs or promotes nontherapeutic abortions. The statute was aimed at Planned Parenthood and similar organizations.
The state relied upon cases such as Maher v. Roe and Rust v. Sullivan, but the court's opinion, authored by Judge Helene White, stated:
Plaintiffs do not claim an entitlement to government funds. They acknowledge the government’s right to define the parameters of its own programs, and have complied with all program requirements. What they do claim is a right not to be penalized in the administration of government programs based on protected activity outside the programs.
Instead, Judge White wrote, the correct precedent was Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI) (2013). Recall that in the "prostitution-pledge" case, the United States Supreme Court held unconstitutional under the First Amendment a provision of a federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. For the Sixth Circuit, AOSI "reiterated that the government may not require the surrender of constitutional rights as a condition of participating in an unrelated government program." In short,
the government cannot directly prohibit Plaintiffs from providing and advocating for abortion on their own time and dime, [ and thus ] it may not do so by excluding them from government programs for which they otherwise qualify and which have nothing to do with the government’s choice to disfavor abortion.
The Sixth Circuit found that the Ohio statute violated unconstitutional conditions based on constitutional infringements of both the Due Process Clause and the First Amendment. On the due process issue, the court found that the due process right to an abortion was at issue. The court rejected the "importation" of the undue burden standard into this analysis, but also reasoned that even under the undue burden analysis, especially in the United States Supreme Court's most recent abortion ruling in Whole Woman's Health v. Hellerstedt (2016), the statute violated due process.
On the First Amendment claim, relating to the Ohio statute's denial of funds to any organization that promotes abortions, again the Sixth Circuit quoted Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI): the government does not "have the authority to attach ‘conditions that seek to leverage funding to regulate speech outside the contours of the program itself.’ "
While there is some potential for a circuit split given the Seventh Circuit's opinion in Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Department of Health, 699 F.3d 962 (7th Cir. 2012), cert. denied, 569 U.S. 1004 (2013), the Sixth Circuit extensively analyzes the Seventh Circuit's opinion and concludes that because it was decided before Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI), it is no longer persuasive.