Constitutional Law Prof Blog

SCOTUS Rules NC Statute Restricting Internet for Sex Offenders Violates First Amendment

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

 In the United States Supreme Court unanimous decision in  Packingham v. North Carolina, the Court found that the state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access commercial social networking sites, violated the First Amendment.  This outcome was predictable given the then-eight Justices' skepticism during the oral arguments in February.  Recall that Packingham was convicted of the North Carolina felony for his Facebook page on which he wrote " Thank you Jesus.  God is good" regarding a result on his parking ticket. 

The Court's majority opinion by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, is a mere 10 pages.  The Court not only stresses the breadth of the North Carolina statute, but highlights the role of the Internet in "our modern society and culture" as vital to the First Amendment:

By Fekner - Own work, CC BY-SA 3.0 via

A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. . . .

While in the past there may have been difficulty in identifying the most important places (in a spatial sense)for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular. Seven in ten American adults use at least one Internet social networking service. . . .
While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and sofar reaching that courts must be conscious that what they say today might be obsolete tomorrow.
This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

For the Court majority, even assuming the North Carolina statute was content neutral and should be analyzed under intermediate scrutiny, the statute "enacts a prohibition unprecedented in the scope of First Amendment speech it burdens."  The Court noted that the present statute applies to all social networking sites including  Facebook, LinkedIn, and Twitter, and that a state could possibly enact a more specific provision, such as prohibiting contacting a minor on social media. 

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

While Justice Alito's opinion, joined by Chief Justice Roberts and Justice Thomas, agrees with the outcome, Alito criticizes Kennedy's opinion for the Court as not being sufficiently circumspect and cautious, and for engaging in "loose rhetoric."  For Alito, the problem with the North Carolina statute is likewise its breadth: "its wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child."  Among Alito's examples are Amazon.com, the Washington Post website, and WebMD.  Yet Alito's opinion, just slightly longer than Kennedy's for the Court, found it important to argue that the entirety of the internet or even social media sites are "the 21st century equivalent of public streets and parks." In support of this, Alito argues that the internet offers an "unprecedented degree of anonymity."

Yet Alito's concurring opinion does not essentially disagree with the Court's finding that it would be possible for a state to craft a sufficiently narrow statute.  The disagreement, however, may be in the room for states to maneuver in drafting such a criminal statute. 

 

Welcome Race and the Law Prof Blog

An exciting new venture and promising source for race and the law scholars, teachers, and students:

Race and the Law Prof Blog

by

Professors Khaled A. Beydoun, Atiba Ellis, Brant T. Lee & Nareissa Smith

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Daily Videos: "Citizen Four" and Edward Snowden Interviews

With the release of "Citizen Four," the film by Laura Poitras on Friday, two videos are worth a watch.

First, here is a Q&A session with Laura Poitras at the 52nd New York Film Festival on October 10 after a premier of the film.

 

 

Second, here is a "virtual interview" with Edward Snowden from the New Yorker Festival - - - including in the first minute or so the official trailer of the film (also here) and an extended discussion with Snowden:

 

 

Government Dismisses Bulk of Indictment Against Barrett Brown

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

In the controversial indictment by federal government of Barrett Brown (pictured below), one of the most startling First Amendment issues was the protection of "speech" consisting of hyper-linking.

Brown described himself in his court papers as "a thirty-two year old American satirist, author and journalist,"  who "founded Project PM, a collaborative web publication whose contributors conduct research using publically available materials such as information obtained from leakers and hackers" and that "came to focus on the private military and intelligence contracting industry. This transition came amidst a federal crackdown on leaks escaping Washington and an attempt to prosecute whistleblowers."  The indictment focused on the posting of a hyperlink to files from a third party, Stratfor, Strategic Forecasting, Inc., a "global intelligence" company.

Brown's  motion to dismiss the indictment included First Amendment arguments as well as arguments that his conduct did not satisfy the elements of the crime. 

Today the United States Government moved to dismiss  its own indictment, counts 1, and 3-12 - - - all the counts reliant on the hyper-linking.

This leaves count 2 of the indictment: possession of stolen credit card account numbers and their CVVs (Card Verification Values), a count that Brown's own Motion to Dismiss similarly did not address.

This also leaves two other indictments against Brown. 

[image via]

 

Justice Scalia's Dissents and the Post Windsor Same-Sex Marriage Cases

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

There have been a spate of federal judges declaring state constitutional or statutory provisions banning recognition of same-sex marriage unconstitutional under the Fourteenth Amendment: 

De Leon v. Perry, from the Western District of Texas;
Bostic v. Rainey  from the Eastern District of Virginia;
Bourke v. Beshear from the Western District of Kentucky; 
Bishop v. United States from the Northern District of Oklahoma;
Obergefell v. Wymyslo from the Southern District of Ohio;
Kitchen v. Herbert, from the District of Utah;
Lee v. Orr applicable only to Chicago.

Other than Lee v. Orr, in which the judge was only ruling on an earlier start date for same-sex marriage than the Illinois legislature had declared, the judges in each of these cases relied on Justice Scalia's dissenting opinions.

In "Justice Scalia’s Petard and Same-Sex Marriage," over at CUNY Law Review's "Footnote Forum," I take a closer look at these cases and their relationship to Shakespeare's famous phrase from Hamlet.

 

"A petard, from a seventeenth century manuscript of military designs" via

 

 

Daily Read: The Intercept on the NSA and Targeted Killing

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

A new digital publication, The Intercept, created by Glenn Greenwald, Laura Poitras, and Jeremy Scahill, launched today.  It describes itself as devoted to reporting on the documents previously provided by NSA whistleblower Edward Snowden, and in the longer term, to broaden its scope.

Included is the article "The NSA’s Secret Role in the U.S. Assassination Program" by Scahill and Greenwald, arguing that the NSA uses electronic surveillance, rather than human intelligence, as the primary method to locate targets for lethal drone strikes, which is "an unreliable tactic that results in the deaths of innocent or unidentified people."

The article relies on a variety of sources, confidential and not, to paint a portrait of the "targeted killing" program.  It ends by implicating President Obama:

Whether or not Obama is fully aware of the errors built into the program of targeted assassination, he and his top advisors have repeatedly made clear that the president himself directly oversees the drone operation and takes full responsibility for it.

And Obama may even think it's one a "strong suit" of his.

This will definitely be a publication to watch for anyone interested in Executive, military, and other government powers.

The Town Hall Prayer Case in the Supreme Court - - - of Canada

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

Before the opening of each town hall meeting, the Mayor recites a prayer - - -

Almighty God, we thank You for the many favours that You have granted Saguenay and its citizens, including freedom, opportunities for development and peace. Guide us in our deliberations as members of the municipal council and help us to be well aware of our duties and responsibilities. Grant us the wisdom, knowledge and understanding that will enable us to preserve the advantages that our city enjoys, so that everyone can benefit from them and we can make wise decisions. Amen.

Montage of the City of Saguenay, Quebec

Although a government official  - - - rather than someone selected by government officials - - - recites the prayer (in French), the similarties to Town of Greece v. Galloway, argued before the United States Supreme Court in November, are obvious.   However, the religious practice of the City of Saguenay in the province of Quebec, is going before the Supreme Court of Canada in Mouvement laïque québécois (MLQ)  v. City of Saguenay.   (Americans might analogize the Quebecois MLQ to American organizations such as Freedom from Religion). 

There's a terrific discussion of the case by Victor Yee over at "The Court," a blog from Osgoode Hall about the Supreme Court of Canada.

Any decision by the Supreme Court could have implications for Quebec's controversial attempt to regulate the wearing of "ostentatious" religious gear by public employees  and might draw on the Supreme Court of Canada's decision in R. v. N.S., involving the right of a witness in a criminal prosecution to wear a veil.   Although the challenge in City of Saguenay is akin to a US Constitutional "Establishment Clause" challenge and the Canadian doctrine of government religious neutrality.

[image via]

Obama's Speech and Directive on NSA Surveillance

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

In a highly anticipated event today, President Obama delivered his remarks accompanied by a directive, Presidential Policy Directive/PPD-28, on "Signals Intelligence Activities,"  regarding NSA Surveillance.   Recall that late last year a presidential advisory committee issued a report with specific recommendations, that one program has been subject to differing judicial interepretations - - - in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper,  Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional - - - and that the national discussion on this issue is largely attributable to Edward Snowden.

While the judicial opinions did not specifically feature in Obama's remarks, Snowden did:

Given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or motivations. I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.

As for Obama's specific reforms, critics might also argue that they are more "heat than light."  Importantly, Obama did pay more attention to "foreign" persons.  He also broadly stated:

 

In no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S. business sectors commercially; or achieving any purpose other than those identified in this section.

But the details, as usual, can be a bit more perplexing.  For example, consider this qualification to "competitive advantage" :

Certain economic purposes, such as identifying trade or sanctions violations or government influence or direction, shall not constitute competitive advantage.

The Electronic Frontier Foundation released a "scorecard" before Obama's remarks and directive.  Afterwards, it tweeted the results of its assessment of Obama's performance:

 

Daily Read: Rolling Stone on Snowden and Greenwald

Janet Reitman's excellent article in Rolling Stone entitled "Snowden and Greenwald: The Men Who Leaked the Secrets" and subtitled "How two alienated, angry geeks broke the story of the year" is worth a read, nevermind the tags meant to attract Rolling Stone's target demographic.  With this past summer's  New York Time magazine article "How Laura Poitras Helped Snowden Spill His Secrets" by Peter Maas, there is much in both of these pieces that merits consideration. 

True, the articles are journalistic.  Reitman tells us that for "a man living in the middle of a John le Carre' novel, Greenwald has a pretty good life."  She then talks about his dogs (also mentioned in the article by Maas).  It's the stuff of human interest stories.  But Reitman also gives Greenwald's story of lawyering: first with a law firm and then in his own practice, "defending the First Amendment rights of neo-Nazis.":

It was one of Greenwald's prouder accomplishments as an attorney. "To me, it's a heroic attribute to be so committed to a principle that you apply it not when it's easy," he says, "not when it supports your position, not when it protects people you like, but when it defends and protects people that you hate."

As for Snowden, he's also humanized, but to her credit, Reitman quotes his ideas and motivations.  She also situates him within a "community": there's former NSA official Thomas Drake and Wikileaks Julian Assange as well as Laura Poitras and Greenwald's partner David Miranda, who was stopped by British authorities at Heathrow airport in August.  

 

And importantly, there's discussion of the rather murky legal, ethical, and journalistic landscape as it exists at the moment.  

 

ConLawProfs: this could be an excellent assignment for the first day of classes, coupled with the NYT article on Laura Poitras.

 

 

Weekend Read: The Circle by Dave Eggers

Dave Eggers' new novel, The Circle, is a thought-provoking read for anyone working on surveillance, state secrets, corporate governance, privacy, or First Amendment issues as broadly defined.  There are have been some questions raised, as in the review in Wired, whether the book is technologically sophisticated - - - I'd say it's not - - - or whether it works as literature - - - again, I'd lean towards not.  I also think there are some gender and sexual politics that merit further analysis and mar the novel.    But even with these faults, it is one of those books that gives expression to the way one sees daily life in our connected age.

Margaret Atwood has a terrific review of the book in New York Review of Books that gives a good overview of the themes, laced with literary references that the novel itself lacks. Discussing the book over at the New Yorker Blog, Betsy Morais contextualizes the novel, including some of the criticisms and analogues. There's a good rundown of reviews and the divisions about the book in The Atlantic "Wire." 

The book lingers after it is read because it raises interesting questions about the relationships between corporate power and government, as well as our complicity in this internet and social age.  And it's a quick read - - - especially electronically.

 

UPDATE: And here's the NYT Sunday Book Review by Ellen Ullman, who concludes the novel "adds little to the debate" : "Books and tweets and blogs are already debating the issues Eggers raises: the tyranny of transparency, personhood defined as perpetual presence in social networks, our strange drive to display ourselves, the voracious information appetites of Google and Facebook, our lives under the constant surveillance of our own government."

Daily Video: Stephen Cobert Interviews Emily Bazelon on McCutcheon v. FEC

Worth a watch:

The Colbert Report
Get More: Colbert Report Full Episodes,Video Archive

Here's our take on today's oral arguments in the United States Supreme Court.

Keeping Up with Australian Constitutional Law Developments

Professor Melissa Castan has an excellent round-up of sites devoted to Australian Constitutional Law over at Amicae Curiae ("Girlfriends of the Court"). 

As a bonus, it's illustrated by a still from the classic Australian comedy The Castle where lawyer Dennis Denuto is pleading Daryl Kerrigan’s case in the Federal Court and is so far out of his depth that he starts to refer to the Australian Constitution and rather than a specific textual reference, says that it is just the "vibe of the thing" that the judge should consider.

Here's a video of the pertinent scene:

 

 

Robson's Dressing Constitutionally

ConLawProf's own Ruthann Robson (CUNY) just published her fascinating new book Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes (Cambridge, also available at amazon.com).  NPR's All Things Considered has a segment here; the Feminist Law Professors blog covered it here; and Robson's SSRN page for the Introduction and Table of Contents is here.

We'll post an interview with Robson soon.  In the meantime, take a look at Robson's book blog, dressingconstitutionally.com.  And here's the abstract from SSRN:

The intertwining of our clothes and our Constitution raise fundamental questions of hierarchy, sexuality, and democracy.  From our hairstyles to our shoes, constitutional considerations both constrain and confirm our daily choices.  In turn, our attire and appearance provide multilayered perspectives on the United States Constitution and its interpretations.  Our garments often raise First Amendment issues of expression or religion, but they also prompt questions of equality on the basis of gender, race, and sexuality.  At work, in court, in schools, in prisons, and on the streets, our clothes and grooming provoke constitutional controversies.  Additionally, the production, trade, and consumption of apparel implicate constitutional concerns including colonial sumptuary laws, slavery, wage and hour laws, and current notions of free trade.  The regulation of what we wear -- or don't -- is ubiquitous.

SDS

Seventh Circuit Finds Indiana Statute Banning Sex Offenders from Social Media Unconstitutional

In its unanimous twenty page opinion in Doe v. Prosecutor, Marion County today, the Seventh Circuit concluded that the Indiana statute restricting registered sex offenders from social media is unconstitutional.

At issue was Indiana Code § 35-42-4-12, prohibiting sex offenders from “knowingly or intentionally us[ing]: a social networking web site”1 or “an instant messaging or chat room program” that “the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program.

Recall that the district judge rejected Doe's First Amendment challenge, concluding the statute was sufficiently tailored and left ample alternatives of communication open, and reasoning that many "sex offenders have difficulty controlling their internal compulsions to commit these crimes. It stands to reason that many sex offenders might sign up for social networking with pure intentions, only to succumb to their inner demons when given the opportunity to interact with potential victims."

Reversing, the Seventh Circuit found that the statute was not narrowly tailored to serve the state’s interests, but "broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors." The opinion stressed that there were many alternative - and more specific - means by which the state could accomplish its purpose.

The court made clear that the problem was the statute's overbreadth with its caveat:

this opinion should not be read to affect district courts’ latitude in fashioning terms of supervised release, 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment[.]”), or states from implementing similar solutions. Our penal system necessarily implicates various constitutional rights, and we review sentences under distinct doctrines.

Additionally, while subsequent Indiana statutes might meet a narrowly tailored requirement, "the blanket ban on social media in this case regrettably" did not.

RR

Daily Read: SCOTUS Website on DOMA and Proposition 8

The Supreme Court of the United States has updated its website to include a page entitled "Filings in the Defense of Marriage Act  and California’s Proposition 8 cases,"  or   "DOMPRP8."

It promises to be helpful, with "live links to the orders, case filings, and other information pertaining to the Defense of Marriage Act and California’s Proposition 8 cases."   

The disclaimer is worth a look:

Disclaimer: We have provided a link to this site because it has information that may be of interest to our users.  The Supreme Court of the United States does not necessarily endorse the views expressed or the facts presented on this site.

RR

Arizona's HB 2459: Internet Decency?

Awaiting Governor Jan Brewer’s signature is Arizona HB-2549 , a bill that “updates” the previous telephone harassment statute to apply to the internet.  The bill applies to obscene, lewd, profane language as well as the suggestion of any lascivious act.

 The bill’s text, which would be codified as Arizona Revised Statutes §13-2916, entitled "Use of an electronic or digital device to terrify, intimidate, threaten, harass, annoy or offend; classification; definition", with the updated provisions IN ALL CAPS, provides:

 A.  It is unlawful for any person, with intent to terrify, intimidate,threaten, harass, annoy or offend, to use ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or  property of any person. It is also unlawful to otherwise disturb by repeated anonymous ELECTRONIC OR DIGITAL COMMUNICATIONS the peace, quiet or right of privacy of any person at the place where  COMMUNICATIONS were received.

B. Any offense committed by use of AN ELECTRONIC OR DIGITAL DEVICE as set forth in this section is deemed to have been committed at either the place where the COMMUNICATIONS originated or at the place where the COMMUNICATIONS were received.

 C. Any person who violates this section is guilty of a class 1 misdemeanor.

 D. FOR THE PURPOSES OF THIS SECTION, "ELECTRONIC OR DIGITAL DEVICE" INCLUDES ANY WIRED OR WIRELESS COMMUNICATION DEVICE AND MULTIMEDIA STORAGE  DEVICE.

The First Amendment concern is that the statute is overbroad.  It seems the new statute would apply to general communication on web sites, blogs, listserves and other Internet communication.  Translated from the telephone to the Internet, the analogies are imperfect at best:  a comments section of a blog, a youtube video, a facebook posting, or any number of Internet “communications" are simply not like a one-to-one telephone call.

Recent First Amendment cases such as US v. Stevens have declined to extend obscenity, and the Internet, unlike the telephone, is not a "regulated media."

If Governor Brewer signs the bill, a First Amendment challenge will surely follow.

RR
[image, telephone circa 1931, via]

SOPA & Protect-IP Bills Provoke First Amendment Concerns

SOPA, the Stop Online Privacy Act, H.R.3261, and its Senate counterpart, Protect-IP Act, S. 968, seek to protect copyright on the internet.  It has provoked a day of protest today, including "blackouts" by Wikipedia, Reddit, and other sites, contending that the bills violate the First Amendment.

SOPA has a savings clause in §2(a)(1) that provides

"FIRST AMENDMENT- Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution."

However, as Laurence Tribe's 20+ page memo on the unconstitutionality of SOPA concludes:

To their credit, SOPA’s sponsors recognize the importance of the constitutional issues raised by the statute they propose. The bill includes language stating “[n]othing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1stAmendment to the Constitution.” But proclaiming the bill to be constitutional does not make it so – any more than reminding everyone of a proposed law’s good intentions renders that law immune to First Amendment scrutiny. At the same time, the proviso may have the unintended effect of rendering large swaths of the bill inoperative. For it is difficult to understand how the provisions discussed above would operate except  as impermissible prior restraints. The proviso creates confusion and underscores the need to go back to the drawing board and craft a new measure that works as a scalpel rather than a sledgehammer to address the governmental interests that SOPA purports to advance.

A good collection of the arguments against SOPA is over at Center for Democracy and Technology, including "long-form analysis" by both The Heritage Foundation and the ACLU.

As the LATimes reports today, SOPA and Protect-IP are losing Congressional support, including from former co-sponsors. It may be that the legislation may be reworked to be more scalpel-like.

RR

Supreme Court October 2011 Term

 

Watch a video of the annual Supreme Court portrait on the Washington Post site here.

And thanks to all our commentators and readers as we celebrate our blog's 3rd anniversary and over a half-million hits.

RR

 

"Occupy Wall Street" Update

Unlike the protesters violating the anti-masking statute as we discussed, the mass arrests on Saturday in NYC seem to be largely for infractions devoted to blocking traffic according to the NYT. There is an unconfirmed allegation of an arrest for photographing police officers; this could be problematic in light of the First Circuit decision last month denying police officers qualified immunity in a civil suit by a man arrested for video-recording an arrest of another person on his cell phone.

There are allegations of police misconduct, including excessive force and the use of "kettling" (netting protesters) followed by pepper spray. The available media depicting the protest and the arrests make vivid viewing and seem to substantiate these allegations. This material could prompt excellent discussions for ConLawProfs (as well as CrimProProfs, and those teaching Civil Disobedience, Social Change, and Democratic Theory courses). 

The NYT site has a few videos [start here], but a larger selection is available on the occupywallstreet site.

RR
[image via]

What's Rational About Rational Basis Review?: Same-Sex Marriage Litigation in Perspective

This is from SCOTUSblog's  same-sex marriage symposium featuring discussions about the Proposition 8 litigation and DOMA litigation, both of which may be heading for the United States Supreme Court.

My contribution focuses on the rational basis standard of review:

The federal Defense of Marriage Act (DOMA) and California’s Proposition 8 are both subject to judicial review under a standard at least as rigorous as rational basis.

There are serious and worthwhile arguments that courts should employ a more rigorous standard of review than rational basis in same-sex marriage litigation.  However, federal district judges in two important decisions that may be heading to the United States Supreme Court have concluded that DOMA and Proposition 8 cannot survive even the low standard of rational basis.  Considering DOMA Section 3, federal district judge Joseph Tauro in Gill v. Office of Personnel Management declined to decide whether the federal statute should be subject to strict scrutiny “because DOMA fails to pass constitutional muster even under the highly deferential rational basis test.”   Similarly, ruling on Proposition 8 in Perry v. Schwarzenegger, federal district judge Vaughn Walker held that although the “trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation,” the application of “strict scrutiny is unnecessary,” because “Proposition 8 fails to survive even rational basis review.”

Judge Tauro’s decision is on appeal to the First Circuit, while Judge Walker’s decision is awaiting resolution of the important issue of whether the proponent/intervenors have standing to appeal to the Ninth Circuit, with a certified question presently before the California Supreme Court.   Whether the rational basis standard of review should be used to evaluate DOMA is also before Judge Barbara Jones of the Southern District of New York in Windsor v. United States. The Department of Justice is not defending the constitutionality of DOMA in Windsor, having concluded that DOMA fails to meet the heightened level of scrutiny it has determined should be used for sexual orientation classifications.   The Bipartisan Legal Advisory Group of The United States House of Representatives (BLAG), defending DOMA in Windsor, filed its Memorandum on August 1, vigorously asserting that rational basis is the correct standard and that DOMA easily satisfies it.

 

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