Tuesday, September 16, 2014

RFRA Frustrates Child Labor Investigation

Senior Judge David Sam (C.D. Utah) ruled last week that the Religious Freedom Restoration Act prevented the court from compelling a FLDS Church member from answering questions related to a Labor Department investigation into child labor violations.

The ruling does not necessarily end the Labor Department investigation, though. Indeed, as Judge Sam wrote, DOL may be able to get the information from other sources.

The case arose when DOL sought an order compelling a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, or FLDS, to answer questions in the course of an investigation over the use of child labor in harvest activities at a pecan ranch in Hurricane, Utah. The FLDS member, Vernon Steed, invoked the First Amendment (free exercise), objecting to DOL's questions about the internal affairs of the FLDS Church. Judge Sam wrote that the claim sounded more like a Religious Freedom Restoration Act claim, and applied the higher level of scrutiny under the RFRA.

Judge Sam wrote first that a court order would substantially burden Steed's religious beliefs, because Steed said that he made a vow "not to discuss matters related to the internal affairs or organization of the [FLDS]," and that giving testimony would violate that vow. DOL challenged the sincerity of this belief, but Judge Sam, citing Hobby Lobby, didn't question it.

Judge Sam then wrote that DOL failed to satisfy the RFRA standard (again citing Hobby Lobby) because it had other ways to get the information it sought. For example, DOL could get information from the corporation or individuals who contracted to manage the ranch.

The ruling may not shut down the investigation, because DOL may, indeed, be able to get the information it needs from these other sources. But even if it can, the ruling underscores the heightened, strict scrutiny standard under the RFRA (over the lower, rational basis standard in Smith) , and illustrates its reach.

September 16, 2014 in Cases and Case Materials, First Amendment, Free Exercise Clause, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

CFP: Richmond Journal Law and the Public Interest

From the editors of Richmond Journal Law and the Public Interest:

The Richmond Journal of Law & the Public Interest is seeking submissions for the Spring Issue of our 2014-2015 volume.  We welcome high quality and well cited submissions from academics, judges, and established practitioners who would like to take part in the conversation of the evolution of law and its impact on citizens.

We currently have four total openings for articles for our Spring Issue.  As a Journal that centers in large part on the Public Interest, we are seeking at least one article that touches upon current Constitutional Issue(s) and the effects that the issue(s) may have on the National Public Interest.  For a sense of what we are seeking for our general issues, feel free to visit here.

If you would like to submit an article for review and possibly publication, or if you have any questions at all, please do not hesitate to contact our Lead Articles Editors, Rich Forzani and Hillary Wallace, at rich.forzaniATrichmond.edu and hillary.wallaceATrichmond.edu.

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September 16, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 15, 2014

District Judge Finds Ohio's Prohibition of Campaign Falsehoods Violates First Amendment

In a 25 page opinion  replete with bolded underlined language, Judge Timothy Black held Ohio's statutory provisions prohibiting political false statements in Susan B. Anthony List v. Ohio Elections Commission.  

Recall that the United States Supreme Court heard the case as Susan B. Anthony List v. Driehaus  last Term and unanimously held that the case was ripe for review, reversing the Sixth Circuit.  The Court's opinion made little mention of the substantive First Amendment arguments, although at oral argument, counsel for the anti-abortion group Susan B. Anthony List, referred to the Ohio Election Commission as a "ministry of truth," a characterization later echoed by Justice Scalia. 

DP819156
"The Mouth of Truth"
woodcut by Lucas van Leyden circa 1514
via

Judge Black refrains from an explicit Orwellian allusion, but he expresses a similar sentiment: "we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth." (bold underlining in original).  However, Judge Black does resort to a phrase attributed to the character Frank Underwood in the television show House of Cards: “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.” (bold underlining in original).

Doctrinally, Judge Black relies on United States v. Alvarez in which the Court found the “Stolen Valor” statute unconstitutional, noting that the four Justice plurality held that strict scrutiny should apply and concluding that the federal statute was not necessary to achieve compelling interests and that less restrictive alternatives existed.

In considering the compelling government interest prong, Judge Black distinguished McIntyre v. Ohio Elections Committee (1995), the Court held unconstitutional a state statute prohibited the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature.  This "right to be anonymous" seemed to rest in part on the government interest in ensuring truthfulness, but as Judge Black writes:

However, in McIntyre, the Supreme Court did not describe the state interest in preventing false speech as “compelling” or even “substantial,” saying only that it was “legitimate” and has “special weight during election campaigns.”  McIntyre expressly refrained from any decision regarding the constitutionality of Ohio’s political false-statements laws. Moreover, Defendants cite no evidence that the false statements laws are “actually necessary” to achieve their interest. To be actually necessary, there must be a direct causal link between the restriction imposed and the injury to be prevented. Id.6 Here, instead, Defendants admit that “the consequences of deceptive false statements on elections are ... inherently difficult to quantify.”

[citations omitted].

 As to the narrowly tailored prong, Judge Black found that the statute chilled protected truthful speech, especially important in the political context.  Judge Black again emphasizes that the remedy for false speech is true speech, even as he notes that he is not convinced that "counterspeech will always expose lies," especially "in the wake of Citizens United."  Nevertheless, the problem of government-determined truth is problematical:

we certainly do not want the Government (i.e., the OEC) deciding what is political truth anyway, for fear that the Government might persecute those who criticize the Government or its leaders. Ultimately, whether or not it is possible to create a system by which impartial citizens could identify lies from the truth is unclear. What is crystal clear, however, is that Ohio’s statutes fail in this respect. The process is inherently flawed.

Judge Black issued both a preliminary and permanent injunction so that the decision is a "final, appealable Order."  Whether or not Ohio officials will choose to return to the Sixth Circuit remains to be seen.

September 15, 2014 in Campaign Finance, Courts and Judging, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, September 12, 2014

Senate Fails to Advance Campaign Finance Amendment

Senate Republicans unanimously blocked the campaign finance constitutional amendment proposed by Democrats.  The measure, S.J. Res. 19, failed 54 to 42, short of the 60 votes necessary to close debate and move to a vote on the merits. 

The proposed amendment would have overturned Citizens United and allowed Congress and state legislatures to regulate campaign contributions and spending.  It read:

Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.

Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.

Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.

Republicans argued that the measure infringed on free speech.  Senator Ted Cruz captured the point when he said that SNL producer "Lorne Michaels could be put in jail under this amendment for making fun of any politician."  That seems pretty unlikely, but still possible under the language.  Politifact gave it a "half-true," based on interviews with several ConLawProfs.

September 12, 2014 in Campaign Finance, Congressional Authority, First Amendment, Fundamental Rights, News | Permalink | Comments (1) | TrackBack (0)

Thursday, September 11, 2014

Third Circuit Upholds New Jersey's Ban on Sexual Conversion Therapy Against First Amendment Challenge

The Third Circuit has upheld the constitutionality of  New Jersey A3371 banning "sexual orientation change efforts" (SOCE), also known as sexual conversion therapy, on minors in its unanimous 74 page opinion in King v. Christie, Governor of New Jersey.  

The Third Circuit affirmed the district judge's extensive opinion from last November and reached the same conclusion as the Ninth Circuit did when reviewing a very similar California statute in  Pickup v. Brown, albeit on different grounds.

  640px-Nellie_Bly-Mad-House-07The Third Circuit's opinion by Judge D. Brooks Smith (and joined by Judges Vanaskie and Sloviter),  specifically disagrees with the Ninth Circuit's conclusion that SOCE is "conduct" rather than speech, a conclusion the New Jersey district judge essentially adopted.  The Third Circuit credits some of the reasoning of Ninth Circuit Judge Scannlain's "spirited dissent" from en banc review in Pickup as well the Supreme Court's Holder v. Humanitarian Law Project.  The Third Circuit rejected the principle that there is a sustainable line between utterances that are speech and those that are treatment:

consider a sophomore psychology major who tells a fellow student that he can reduce same- sex attractions by avoiding effeminate behaviors and developing a closer relationship with his father. Surely this advice is not “conduct” merely because it seeks to apply “principles” the sophomore recently learned in a behavioral psychology course. Yet it would be strange indeed to conclude that the same words, spoken with the same intent, somehow become “conduct” when the speaker is a licensed counselor.”  . . . .  As another example, a law student who tries to convince her friend to change his political orientation is assuredly “speaking” for purposes of the First Amendment, even if she uses particular rhetorical “methods” in the process.

Yet, the court concludes that although such utterances are speech, they are not "fully protected by the First Amendment" because they occur in a professional context.  In speech that occurs pursuant to the practice of a licensed profession - - - including fortune-tellers, a case on which the court relies - - - the speech is entitled to less protection. 

Nellie_Bly-Mad-House-15Precisely, it is entitled to the same level of protection as commercial speech, although importantly the Third Circuit is careful not to hold that this professional speech is commercial speech.   In applying the intermediate scrutiny type standard derived from commercial speech, the court finds that the statute "directly advances” the government’s interest in protecting clients from ineffective and/or harmful professional services, and is “not more extensive than necessary to serve that interest.”

The court's distinction between professional and nonprofessional speech, however, may  suffer from the same lack of bright lines that it finds with the conduct/speech distinction.  The court stresses that professional speech occurs in the context of "personalized services to client based on the professional's expert knowledge and judgement."  But in rejecting an argument that the New Jersey statute makes a viewpoint distinction, the court states that the statute

allows Plaintiffs to express this viewpoint, in the form of their personal opinion, to anyone they please, including their minor clients. What A3371 prevents Plaintiffs from doing is expressing this viewpoint in a very specific way—by actually rendering the professional services that they believe to be effective and beneficial.

The Third Circuit's opinion also considered the challenge that the statute was vague and overbroad, noting that the Plaintiffs themselves claim to specialize in the very practice they argue is not sufficiently defined.  Similarly, the Third Circuit rejected the Free Exercise Clause claim, affirmed the district judge's conclusion on lack of standing to raise the claims of the minor clients (with some disagreement as to reasoning), and also affirmed on the intervention of an organization.

However, it is the free speech claim that it is the center of this controversy, with the Third Circuit carving out a "professional speech" category, in a disagreement with the Ninth Circuit (and on similar issues with other circuits as it notes), but clearly upholding the statute.

 [images from "Ten Days in a Mad House, Nellie Bly, via]

September 11, 2014 in Courts and Judging, First Amendment, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Speech, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 10, 2014

Fellowships at the United States Supreme Court and at Princeton

Two fellowships worth considering.

640px-Jan_van_Eyck_059First, the annual Supreme Court Fellows program has a fast-approaching deadline of November 14, 2014.  There are four positions, one of which is at the Supreme Court.  More information is here.  Professor Stacie Strong has a brief discussion of the program published in Judges' Journal, available on ssrn.

Second, Princeton University’s Program in Law and Public Affairs (LAPA) awards six fellowships (one reserved for an early career fellow on humanities-realted subjects) for "research and writing on law-related subjects of empirical, interpretive, doctrinal and/or normative significance."  The deadline is November 3, 2014 and more information is here.

[image via]

September 10, 2014 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 9, 2014

Obama Tells Congress He Doesn't Need Approval for ISIS Campaign

According to The Hill, President Obama told congressional leaders today that he doesn't need congressional approval for his campaign against ISIS, details to be announced tomorrow night. 

While he told the congressional leaders he would welcome congressional action that demonstrated a unified front, the president told the bicameral, bipartisan group "he has the authority he needs to take action against [ISIS] in accordance with the mission he will lay out in his address," according to the White House.

Participants in the meeting--the House Speaker and Minority Leader, and the Senate Majority and Minority Leaders--didn't say anything about the need for congressional approval afterward.

September 9, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Senate Committee Considers Sharon Block for NLRB

The Senate Health, Education, Labor and Pensions Committee held a hearing today on President Obama's nomination of Sharon Block to the NLRB.  Block was one of the recess-appointees to the NLRB that the Supreme Court struck this summer in Noel Canning.  Her nomination this time is going through the regular Appointments Clause process.

If confirmed, Brown would replace Nancy Schiffer and become the third Democrat on the five-member Board.

Republicans oppose Brown because of her political ideology and the direction of the Board with President Obama's appointments.  They also see her appointment as an end-run around Noel Canning (given that Noel Canning struck her recess appointment).

Still, the full Senate will likely confirm her.  That's because of the filibuster rules change that allows most presidential nominees to move forward to an up-or-down majority vote in the Senate.

Of course, if nominees like Brown hadn't faced a Republican filibuster in the first place, President Obama wouldn't have recess-appointed them; instead, they would have been confirmed through the ordinary appointment process--exactly what's happening to Brown now.  In that way, after all the drama and attention to President Obama's recess appointments in Noel Canning, we're right back where we might have started: majority (not super-majority) confirmation of presidential nominees through the ordinary appointment process.

 

September 9, 2014 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, September 7, 2014

Ohio Federal Judge Rules State's New Voting Scheme Violates Equal Protection

In his 71 page  opinion in Ohio State Conference of the NAACP v. Husted, Judge Peter Economus has issued a preliminary injunction enjoining the Ohio legislature's amendments to the election code that limited early in-person voting.

This opinion is the latest installment in the early voting controversies in Ohio.  Recall that Judge Economus issued an order and opinion two years ago  enjoining the enforcement of new Ohio legislation and specifically restoring in-person early voting on the three days preceding Election Day for all eligible voters.   The Sixth Circuit, in its opinion in Obama for America v. Husted, upheld the injunction.  

580px-Seal_of_the_Ohio_Elections_Commission.svgAfter that controversy, the Ohio legislature enacted SB 238, which had the effect of eliminating the so-called "Golden Week," the period when citizens could both register to vote and cast their ballots at the same time.   The Ohio Secretary of State, Jon Husted, also issued directives setting uniform early in-person (EIP) voting hours for the entire state, eliminating evening voting hours and most Sunday voting during the EIP periods.

Much of the judge's opinion considers the various expert and other evidence regarding the effect of these changes.  Ultimately, Judge Economus found that the changes violated the equal protection rights of certain groups, relying heavily on the Sixth Circuit's opinion in Obama for America v. Husted and Bush v. Gore.

Here's the judge's penultimate paragraph on the equal protection claim:

The Court must now weigh the significant burdens placed on voting by SB 238 and Directive 2014-17 against the offered justifications. As stated above, the Court has found these justifications to be relatively hollow, and, in some cases, not necessarily supported by logic. Accordingly, while the burdens imposed on the voting rights of African Americans, lower income voters, and the homeless are not severe, it cannot be said that they are outweighed by the offered justifications. For instance, there is virtually nothing in the record tending to justify why a uniform voting schedule could not include evening voting hours and additional Sunday voting, especially considering that such voting opportunities have been successfully offered by individual counties in past elections. While the Defendants have frequently noted that Ohio’s system of absentee voting is one of the most expansive in the entire Country, one of the touchstones of the Fourteenth Amendment’s Equal Protection guarantee in the context of voting rights is that actions of a State must “avoid arbitrary and disparate treatment of the members of its electorate.” Bush v. Gore, 531 U.S. 98, 105 (2000). Here, despite the expansiveness of Ohio’s voting system, the weakness of the offered justifications supporting SB 238 and Directive 2014-17 render them essentially arbitrary action when viewed against the burdens they impose on groups of voters. Such action is prohibited by the Equal Protection Clause. Thus, the Court’s conclusions regarding the Plaintiffs’ Equal Protection claim are easily summarized as follows: SB 238 and Directive 2014-17 arbitrarily make it harder for certain groups of citizens to vote.

On the nonconstitutional claim, §2 of the Voting Rights Act, the judge likewise found that there was a substantial likelihood that the challengers could prevail on the merits of their claim.

The judge entered a preliminary injunction regarding early voting for the November 2014 election, the first provisions of which are effective September 30.  If the state is to appeal, it will need to move quickly.

September 7, 2014 in Elections and Voting, Equal Protection, Opinion Analysis, Race | Permalink | Comments (0) | TrackBack (0)

Thursday, September 4, 2014

D.C. Circuit to Rehear Obamacare Challenge

The full D.C. Circuit today agreed to rehear Halbig v. Burwell, in which a three-judge panel of the court previously struck the IRS rule that offers tax credits to purchasers of health insurance on a federally operated exchange who meet certain income requirements.  Today's order also vacates that earlier ruling.  It means that the full, en banc D.C. Circuit will get a bite at the apple, and that the earlier panel ruling is wiped from the books.  The court will hear arguments on December 17.

Recall that the earlier panel ruling striking the tax credit was in direct conflict with a Fourth Circuit ruling the same day upholding the tax credit.  Today's order also removes that circuit split.

We last posted on the case, with background explanation, here.  In short, the case involves an IRS rule that extends tax credits to purchasers of health insurance on a federally operated exchange.  Opponents of the rule argue that the plain text of the ACA limits credits to purchasers on a state-operated exchange.  The government argues that the broader text of the ACA and its purposes show that the credit applies to purchasers on both state and federal exchanges. 

A ruling striking the credits for purchasers on a federal exchange would deal a major blow to the Affordable Care Act and its goal of universal coverage, and could put lower-income purchasers in a pinch.  That's because purchasers in states that declined to establish their own exchanges (and thus triggered the federal government to establish a federal exchange) wouldn't qualify for a credit, and may not be able to afford insurance without it, yet would still be required to purchase it.  An amendment to the ACA could easily solve the problem (again, if a court struck the credits for purchasers on federal exchanges), but congressional opponents of the ACA, and thus Congress, would never go for it--at least unless and until these cases are resolved in favor of the government (when the point would be moot, anyway). 

September 4, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Seventh Circuit Declares Same-Sex Marriage Prohibitions of Two States Unconstitutional

The Seventh Circuit heard oral arguments in Baskin v. Bogan and Wolf v. Walker were just last week.  Today, the court issued its unanimous opinion affirming the district court findings that the same-sex marriage bans in Indiana and Wisconsin are unconstitutional. 

The Seventh Circuit panel enjoined the states from enforcing the laws and did not issue a stay.

Judge Richard Posner (pictured right) who is perhaps the most well-known judge not on the United States Supreme Court and who attracted attention with his comments at the oral argument, perhaps not surprisingly wrote the 40 page opinion. 

441px-Richard_Posner_at_Harvard_UniversityPosner begins by implying the state laws before the court are outliers:

Indiana and Wisconsin are among the shrinking majority of states that do not recognize the validity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are lawful.

The panel's decision is based entirely on equal protection doctrine under the Fourteenth Amendment.  Here's Judge Posner introducing the concept that

comes wrapped, in many of the decisions applying it, in a formidable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest. We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage.

However, Judge Posner's analysis draws heavily on his work in law and economics, implying that cost-benefit analysis deserves more attention that the "conventional approach"  - - - which "doesn’t purport to balance the costs and benefits of the challenged discriminatory law" - - - gives it.  For Posner:

Our pair of cases is rich in detail but ultimately straight- forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

9780674802803Judge Posner doesn't cite his own 1992 book, Sex and Reason, but he could have.  And the rhetorical style and much of the reasoning in this opinion echoes the book, which was widely debated.

Judges Williams and Hamilton apparently agreed.

If the cases go en banc or to the Supreme Court, it will be interesting to see if any of the law and economics rationales are prominent.

 

 

September 4, 2014 in Courts and Judging, Equal Protection, Family, Fundamental Rights, Gender, Opinion Analysis, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 3, 2014

Second Circuit Arguments on NSA Spying on C-Span

The Second Circuit heard oral arguments yesterday in a challenge to the NSA program involving mass collection of telephone call details under Section 215 of the Patriot Act.  The full argument was broadcast on C-Span and is available here.  (The embed code wasn't cooperating.)

The case, ACLU v. Clapper, is one of three cases challenging the program now pending in the circuit courts; the other two are Smith v. Obama (in the Ninth Circuit) and Klayman v. Obama (in the D.C. Circuit).  The Electronic Frontier Foundation has a backgrounder here, with links to case materials; the ACLU has a backgrounder on Section 215 here; the ACLU's page on ACLU v. Clapper is here.

Challengers in the cases argue that Section 215 violates the First and Fourth Amendments, but face justiciability questions before the courts will get to the merits.  That's because Section 215 prohibits a telecommunication company subject to a 215 order from telling its customers about it, so without more a customer wouldn't know.  Still, the district courts in Smith and Klayman ruled that the plaintiffs had standing based on the sheer breadth of the program.

September 3, 2014 in Cases and Case Materials, Courts and Judging, First Amendment, Fourth Amendment, Fundamental Rights, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)

Louisiana Federal Judge Upholds State's Same-Sex Marriage Ban

Breaking the spate of federal decisions that have invalidated state same-sex marriage prohibitions, federal district judge Martin Feldman of the Eastern District of Louisiana today upheld the constitutionality of that state's ban in his 32 page  opinion in Robicheaux v. Caldwell. 

Judge Feldman rejects the equal protection claim (the "most hefty constitutional issue") and the due process claim, as well as rejecting any heightened scrutiny within those claims and any extension of Windsor to state same-sex marriage bans. In applying rational basis, the judge found that the "central state interest of linking children to an intact family formed by their biological parents" and of "even more consequence," the "legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through democratic consensus," was sufficient.

The theoretical underpinnings of the judge's rationale are a preference for states' rights,  democratically enacted provisions, tradition, and a judicial practice of being "circumspect." 

750px-Louisiana_map_Colton_1856

Judge Feldman's opinion credits notions of formal equality and the slippery slope.  For example, in rejecting the analogy to Loving v. Virginia, Judge Feldman writes:  "no analogy can defeat the plain reality that Louisiana's laws apply evenhandedly to both genders--whether between two men or two women."   This evenhandedness was precisely the argument Virginia unsuccessfully advanced in Loving when it argued that under its miscengenation statute, both whites and blacks would be prosecuted.  At another point, Judge Feldman states:

Perhaps in a new established point of view, marriage will be reduced to contract law, and, by contract, anyone will be able to claim marriage. Perhaps that is the next frontier, the next phase of some "evolving understanding of equality," where what is marriage will be explored. And as plaintiffs vigorously remind, there have been embattled times when the federal judiciary properly inserted itself to correct a wrong in our society. But that is an incomplete answer to today's social issue. When a federal court is obliged to confront a constitutional struggle over what is marriage, a singularly pivotal issue, the consequence of outcomes, intended or otherwise, seems an equally compelling part of the equation. It seems unjust to ignore. And so, inconvenient questions persist. For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child? May minors marry? Must marriage be limited to only two people? What about a transgender spouse? Is such a union same-gender or male-female? All such unions would undeniably be equally committed to love and caring for one another, just like the plaintiffs.

Judge Feldman acknowledged that his decision departed from the recent trend, but quoted from the dissenting opinion in the Fourth Circuit's decision in Bostic v. Schaefer.

As Judge Feldman also stated:

Clearly, many other courts will have an opportunity to take up the issue of same-sex marriage; courts of appeals and, at some point, the U.S. Supreme Court. The decision of this Court is but one studied decision among many. Our Fifth Circuit has not yet spoken.

Whether or not the case is appealed to the Fifth Circuit, the issue seems sure to be heard by the United States Supreme Court.

September 3, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Tuesday, September 2, 2014

Seventh Circuit Upholds Indiana's Right-to-Work Law

A sharply divided three-judge panel of the Seventh Circuit today upheld Indiana's "right to work" law against federal preemption and other constitutional challenges.  The ruling means that Indiana's law stays on the books--a serious blow to unions in the state.  But the division invites en banc review and even Supreme Court review of this bitterly contested issue.

The case, Sweeney v. Pence, tested the constitutionality of Indiana's "right to work" law, enacted in February 2012.  That law prohibits any person from requiring an individual to join a union as a condition of employment.  As relevant here, it also prohibits any person from requiring an individual to "[p]ay dues, fees, assessments, or other charges of any kind or amount to a labor organization" as a condition of employment.  In short, it prohibits mandatory "fair share" fees--those fees that non-union-members have to pay for the collective bargaining activities of a union (but not the union's political activities), in order to avoid free-riding. 

The law deals a blow to unions, because it allows non-members to escape even representational fees (or "fair share" fees, those fees designed to cover only a union's collective bargaining and employee representational costs, but not political expenditures), even as federal law requires unions to provide "fair representation" to all employees, union or not.  This encourages "free riders," non-member employees who take advantage of union activities but decline to pay for them.

The plaintiffs, members and officers of the International Union of Operating Engineers, Local 150, AFL-CIO, argued that the National Labor Relations Act preempted Indiana's law and that the law violated various constitutional individual-rights protections.  The preemption argument turned on two provisions of the NLRA, Sections 8(a)(3) and 14(b).  Section 8(a)(3) provides,

It shall be an unfair labor practice for an employer . . . by discrimination in regard to hire or tenure or employment or any term or condition of employment to encourage or discourage membership in any labor organization.

Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein . . . .

Section 14(b) says,

Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.

The Union argued that under this language a state may ban an agency-shop agreement (a requirement that all employees pay full union dues, whether or not they are members), but not a lesser union-security arrangement (like a fair share requirement).

The majority disagreed.  The court said that Indiana had broad rights to restrict union-security agreements, including fair share.  It first pointed to Supreme Court cases (Retail Clerks I and II) that held that Section 14(b) allowed a state to ban an agency-shop agreement.  It then read the term "membership" in Section 14(b) quite narrowly, to include non-members who were required to pay fair share fees.  (That's right: the court said that non-members were part of the "membership" under Section 14(b).)  The court said that the final clause of Section 14(b) therefore leaves room for states to ban complete union-security agreements (like agency shops) and also lesser union-security agreements (like fair share).  It said that some states had these laws on the books when Congress passed Section 14(b), and that some states have them on the books today.  "The longevity of many of these statutes, coupled with the lack of disapproval expressed by the Supreme Court, suggests to us that Indiana's right-to-work law falls squarely within the realm of acceptable law." 

The majority also rejected the plaintiffs' individual-rights arguments, under the Takings Clause, the Contracts Clause, the Ex Post Facto Clause, the Equal Protection Clause, and the Free Speech Clause.

Judge Wood dissented.  She argued that under the majority's approach, Indiana's law amounted to an unconstitutional taking (because, along with the duty of fair representation, it required the union to do work for non-members without pay).  She said the better approach (under constitutional avoidance principles)--and the one more consistent with the language of the NLRA and Retail Clerks I and II)--said that the NLRA preempted Indiana's law.

The sharp disagreement on the panel, the uncertain state of the law, and the contentiousness of the underlying issue all suggest that this case is ripe for en banc review and, ultimately, Supreme Court review.  If so, this case could be the next in a recent line of anti-union rulings chipping away at fair share.

September 2, 2014 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Daily Read: Gabriel Arkles Talking to (Con)LawProfs Talking to Trans* Students

Now that classes have begun, it's a good time for lawprofs to think about how we teach and interact with our students.

ArklesPublished in the on-line "Footnote Forum" of City University of New York's law review, Professor Gabriel Arkles(pictured) has some very specific things to say about the trans* and gender non-comforming students in our classes.  In his essay, Improving Law School for Trans* and Gender Nonconforming Students: Suggestions for Faculty, Arkles provides details of practices that "need improvement" and often specific suggestions for change.  Here's one of special note for ConLawProfs:

Practice in need of change: In discussing Equal Protection doctrine, a constitutional law professor says, “But is sex really an immutable characteristic? Don’t some people get ‘sex changes’?” The class laughs, and the professor moves on.

This comment makes trans* people into the butt of a joke, assumes that no trans* people are in the room, gives no substantive attention to trans* issues in constitutional law, and plays into myths about trans* healthcare.

Arkles' essay is a thought-provoking and must-read this semester.

September 2, 2014 in Gender, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, September 1, 2014

Daily Read: Zephyr Teachout on (Anti-) Corruption

In her new book, Corruption from Harvard University Press, ConLawProf Zephyr Teachout argues that campaign finance reform is constitutional and that the anti-corruption principle is one that originalists should embrace rather than disparage.

CorruptionHere's a bit from the publisher's description:

When Louis XVI presented Benjamin Franklin with a snuff box encrusted with diamonds and inset with the King’s portrait, the gift troubled Americans: it threatened to “corrupt” Franklin by clouding his judgment or altering his attitude toward the French in subtle psychological ways. This broad understanding of political corruption—rooted in ideals of civic virtue—was a driving force at the Constitutional Convention.

For two centuries the framers’ ideas about corruption flourished in the courts, even in the absence of clear rules governing voters, civil officers, and elected officials. Should a law that was passed by a state legislature be overturned because half of its members were bribed? What kinds of lobbying activity were corrupt, and what kinds were legal? When does an implicit promise count as bribery? In the 1970s the U.S. Supreme Court began to narrow the definition of corruption, and the meaning has since changed dramatically. No case makes that clearer than Citizens United.

Teachout has argued her position in op-eds in the Washington Post and in Politico after the Court's decision last term in McCutcheon v. FEC, (more of our McCutcheon discussion is here, here, here, and here). 

Teachout wuAdditionally, Teachout - - - along with Tim Wu, also a law professor - - -  is running for state wide office in New York.  Teachout is running for Governor against the incumbent Andrew Cuomo and Wu is running for Lieutenant Governor in next week's primary election.  (Teachout prevailed in lawsuits brought by the Cuomo campaign challenging her eligibility based on residency).   Interestingly, the New York Times endorsed Wu, but did not endorse either Teachout or Cuomo in the Governor's race, citing Teachout's lack of demonstrated "breadth of interests and experience needed to govern a big and diverse state" and Cuomo's  failure to keep his "most important promise" of addressing "corruption."  The primary is September 9.

September 1, 2014 in Books, Campaign Finance, Current Affairs, First Amendment, Profiles in Con Law Teaching, Scholarship | Permalink | Comments (0) | TrackBack (0)

District Judge Enjoins Portions of Texas' Restrictive Abortion Law, HB 2

The latest installment in the continuing saga of HB 2, Texas' restrictive abortion law, occurred late Friday with Judge Lee Yeakel enjoining the admitting privileges requirement and the ambultory-surgical-center requirement in his 21 page  opinion  in Whole Woman's Health Center v. Lakey.

Recall that a panel of the Fifth Circuit in March upheld the admitting privileges provision of controversial  Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis, after it had issued a stay of Judge Yeakel's decision enjoining the provision as unconstitutional. 

This new opinion considers the as-applied challenge to the admitting privileges provision combined with the the ambultory-surgical-center requirement. 

In considering the testimony and evidence in the bench trial, Judge Yeakel found that the "experts’ testimony substantially contradicted each other and, predictably, reached opposing conclusions," noting that this is "the nature of expert testimony."   But the judge did use some of that testimony, as well as carefully considering the parties' stipulations. 

The court concludes that the act’s ambulatory-surgical—center requirement, combined with the already in-effect admitting-privileges requirement, creates a brutally effective system of abortion regulation that reduces access to abortion clinics thereby creating a statewide burden for substantial numbers of Texas women. The obstacles erected for these women are more significant than the “incidental effect of making it more difficult or more expensive to procure an abortion.” [citing Casey].  The court concludes that the overall lack of practical access to abortion services  resulting from clinic closures throughout Texas as a result of House Bill 2 is compelling evidence of a substantial obstacle erected by the act.  

The judge also concluded "that the severity of the burden imposed by both requirements is not balanced by the weight of the interests underlying them."  And, perhaps most interestingly, the judge explicitly considered the legislative intent of HB2:

An abortion regulation is also violative of a woman’s right to an abortion if it was adopted with the purpose of erecting a substantial obstacle to a woman’s ability to choose a previability abortion. [citing Gonzales v Carhart]. Because the act’s two requirements have the effect of creating an undue burden, an additional finding that the act was passed with the purpose of erecting a substantial obstacle is not required in order to declare the act unconstitutional. However, the court  concludes, after examining the act and the context in which it operates, that the ambulatory-surgical- center requirement was intended to close existing licensed abortion clinics. The requirement’s  implementing rules specifically deny grandfathering or the granting of waivers to previously licensed  abortion providers. This is in contrast to the “frequent” granting of some sort of variance from the  standards which occur in the licensing of nearly three-quarters of all licensed ambulatory surgical  centers in Texas. Such disparate and arbitrary treatment, at a minimum, suggests that it was the intent of the State to reduce the number of providers licensed to perform abortions, thus creating a substantial obstacle for a woman seeking to access an abortion. This is particularly apparent in light of the dearth of credible evidence supporting the proposition that abortions performed in ambulatory  surgical centers have better patient health outcomes compared to clinics licensed under the previous regime.  

[emphasis added].

Thus, the judge enjoined the enforcement of HB2.  

The Attorney General of Texas is sure to appeal. 

September 1, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Gender, Opinion Analysis, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Friday, August 29, 2014

Sovereign Immunity Protects Official's Determination of Streambed Ownership

The Ninth Circuit ruled this week in Lacano Investments v. Balash that state sovereign immunity barred a suit against a state official for his determination that streambeds claimed by the plaintiffs were owned by the State of Alaska.  The court said that the relief plaintiffs requested--declaratory relief and an injunction prohibiting the defendants from claiming title to the lands beneath the waterways--was the funcational equivalent of quiet title, a claim that under Idaho v. Coeur d'Alene Tribe of Idaho does not fall within Ex parte Young.

The case arose when an Alaskan official determined pursuant to the federal Submerged Lands Act of 1953 that certain streambeds over which the plaintiffs claimed ownership were in fact owned by the State of Alaska.  The plaintiffs said that they owned the streambeds pursuant to a federal land patent granted the year before Alaska became part of the Union.  When the official then determined that the streambeds belonged to the state, the plaintiffs sued, seeking declaratory and injunctive relief.

Under Ex parte Young, the plaintiffs could sue a state official for injunctive relief and dodge state sovereign immunity under the Eleventh Amendment.  But the Supreme Court limited Ex parte Young in Coeur d'Alene, holding that the Eleventh Amendment barred a suit that was "the functional equivalent of a quiet title action."  That's because that kind of claim "implicate[d] special sovereignty interests"--the historical and legal importance of submerged lands to state sovereignty.  The Coeur d'Alene Court explained that "if the Tribe were to prevail, Idaho's sovereign interest in its lands and waters would be affected in a degree fully as intrusive as almost any conceivable retroactive levy upon funds in its Treasury."

The plaintiffs argued that Coeur d'Alene was distinguishable, because the plaintiffs in that case sought to divest the state of its title (and not, as here, the other way around), and because a ruling for the plaintiffs in Coeur d'Alene would have deprived the state of all regulatory power over the property (and not so here).  The court didn't bite, however.  The court also rejected the plaintiffs' argument that Coeur d'Alene is no longer good law.  Instead, the court applied Coeur d'Alene, ruled that the plaintiffs' claim was quiet-title-like, and held that the claim was therefore barred by state sovereignty under the Eleventh Amendment.

The ruling means that the plaintiffs' case is dismissed.

August 29, 2014 in Cases and Case Materials, Eleventh Amendment, Federalism, Jurisdiction of Federal Courts, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Texas Supreme Court: Injunction Prohibiting Future Defamation an Unconstitutional Prior Restraint But . . .

In its unanimous opinion today in Kinney v. Barnes, the Texas Supreme Court (pictured) considered the constitutionality of requested relief on an injunction in a defamation case for removal/ deletion of speech that has been adjudicated defamatory, and that "prohibits future speech that is the same or similar to the speech that has been adjudicated defamatory." 

The court held that an injunction of the former type would be constitutional, while the latter would not.

BenchJANUARY2013-5

The court's opinion, authored by Justice Debra Lehrmann, squarely rested its conclusion on state constitutional law, TEX. CONST. art. I, § 8, even as it relied heavily on United States Supreme Court cases on prior restraint under the First Amendment.  However, the court specifically declined to "determine whether the Texas Constitution provides greater protection than the First Amendment on the specific issue presented to us, as the U.S. Supreme Court has not definitively addressed it." 

The trial and intermediate appellate court both granted summary judgment in favor of the defendant based on the unconstitutionality of the relief sought.  However, the court found that an injunction could

order Barnes to remove the statements at issue from his websites (and request that third-party republishers of the statements do the same) upon a final adjudication that the statements are defamatory. Such an injunction does not prohibit future speech, but instead effectively requires the erasure of past speech that has already been found to be unprotected in the context in which it was made. As such, it is accurately characterized as a remedy for one’s abuse of the liberty to speak and is not a prior restraint.

This would be true assuming that the standards for an injunction were otherwise met, with the understanding that damages are the preferred remedy for defamation.  However, as to future statements, an injunction would be an impermissible prior restraint, in part because it would be almost necessarily overbroad:

The particular difficulty in crafting a proper injunction against defamatory speech is rooted in the contextual nature of the tort. In evaluating whether a statement is defamatory, the court construes it “as a whole in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement.” [citation omitted].  Given the inherently contextual nature of defamatory speech, even the most narrowly crafted of injunctions risks enjoining protected speech because the same statement made at a different time and in a different context may no longer be actionable. Untrue statements may later become true; unprivileged statements may later become privileged.

Yet in some ways, this observation highlights the problem with the removal of the adjudged defamatory statement.  It too is contextual and time-bound, but arguably this becomes (temporarily) determined if there is a finding that it is defamatory. 

The court rejected the notion that "the Internet is a game-changer" and also rejected the assertion of the importance of "cyber-bullying and online hate speech": "It is enough to say that neither of those is at issue here."

August 29, 2014 in Courts and Judging, First Amendment, Speech, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, August 28, 2014

Tenth Circuit Upholds NLRB Ruling with Recess Appointment

The Tenth Circuit yesterday upheld an NLRB order by a Board panel that included Craig Becker, one of President Obama's recess appointments to the Board.  The court suggested that the parties might have challenged the NLRB order under the Supreme Court's ruling this summer in Noel Canning (which held that President Obama lacked authority under the Recess Appointment Clause to appoint certain members to the Board).  But because the parties didn't raise the argument--and instead actively steered the court away from the point--the court didn't rule on the Board's quorum, and instead upheld the order on the merits.

The order at issue came from an NLRB panel that included Craig Becker, a recess appointee during a two-plus week recess of the Senate.  The Supreme Court wrote in Noel Canning that a Senate recess less than ten days is "presumptively too short" to allow the President to make an appointment pursuant to the Recess Appointment Clause.  Under that language, Becker's appointment isn't presumptively invalid.  But the Tenth Circuit also suggested that it wasn't necessarily valid:

To be sure, the Supreme Court stopped short of validating every appointment made during a recess ten days or longer.  One might even read the majority opinion as leaving the door open for future challenges to some such appointments: from the proposition that shorter than ten days is usually too short it doesn't follow that ten days or longer is always enough.

Still, the court didn't touch the issue, because the parties didn't argue it.  ("We don't often raise arguments to help litigants who decline to help themselves, especially when the litigants have consciously waived the arguments by steering us away from them and toward the merits instead.")  Instead, the court upheld the order on the merits.

August 28, 2014 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)