Tuesday, November 9, 2010

Cooley and the Prop 8 Appeal

“Hey neighbor let me give you some advice”

Williams Institute fellow Craig Konnoth has written a “Viewpoint” opinion piece in the Sacramento Bee here, where he argues that the outcome of the very close race between Steve Cooley and Kamala Harris “is important for same-sex marriage rights nationally.”  Cooley has said that he would defend Proposition 8 if he were Attorney General; Harris has said she would not due to its unconstitutionality, in her view and the view of federal district court Chief Judge Vaughn Walker.   Although Konnoth’s piece is generally on point, it may raise some alarms that it should not.

Konnoth writes that, “[g]iven the deadlines involved, it is unclear whether Cooley will have a chance to intervene at either the appellate or Supreme Court levels. However, if the courts allow him to intervene in the case, it would solve the standing problem [created by Jerry Brown’s and Arnold Schwarzenegger’s refusal to defend Prop 8], and the Supreme Court could face the issue head-on.”  I believe this fear to be misplaced.

The deadline has already passed for California to file an appeal in the Prop 8 litigation.  Although the United States Court of Appeals for the Ninth Circuit has the power to waive almost every one of the procedural rules that govern its hearing of appeals, the rules themselves are explicit that the one rule the Court of Appeals cannot waive is the deadline for filing a notice of appeal.  Because allowing Cooley to intervene to re-enter California as a defendant would clearly be an end-run around this nondiscretionary limitation, I am confident that an intervention motion would be denied.  Thus, even if Cooley were to win the Attorney General race, he will not be able to intervene on behalf of California in the Prop 8 litigation.

Now, he would likely be able to seek to have California participate in an “amicus” capacity, as a “friend of the court” but not an official party.  Some people have suggested (in the Desert Sun article here, for example) that even such an official representation by the state would harm the plaintiffs’ chances on appeal.  But that is far from clear.

First, in this hypothetical, California’s official approval of the Prop 8 defenders’ conclusions should not affect whether or not the courts conclude that the Prop 8 proponents have or lack standing to appeal.  Subsequent approval by one elected official should not be taken as adequate authorization for the ballot proponents to defend the statute on their own, since the voters did not authorize the proponents to defend even though they could have:  prior initiatives in California have at times specified that their proponents would be empowered to defend them in Court.

Second, the judges of the Ninth Circuit Court of Appeals, the Justices of the U.S. Supreme Court, and just about everyone else knows that Californians are closely divided about the merits of Prop 8’s ban on same-sex couples’ marrying civilly.  The fact that one elected state official (Cooley, continuing this hypothetical scenario), not representing a party to the appeal, believes Prop 8 to be constitutional should therefore not carry much weight.   Indeed, cases from other federal Courts of Appeals have allowed governors to file amicus briefs on behalf of states.  Thus, even if Steve Cooley tried to file a brief arguing in favor of Prop 8 in the Ninth Circuit, Jerry Brown as Governor might be able to file an amicus brief for California arguing against the constitutionality of Prop 8.  Can anyone really think such dueling amicus briefs would have much influence on judicial decisionmaking?

[To complicate the matter for federal jurisdiction scholars who may read this, there is a statute, Section 2403(b) of title 28 of the United States Code, that allows States to intervene for argument on the question of the constitutionality of a statute of the state affecting the public interest.  Assuming a ballot initiative is embraced within the meaning of “a statute,” there is still a question about the interaction of this statute with the Federal Rules of Appellate Procedure, which contain the deadline for parties to file notices of appeal.  Section 2403(b) was clearly written contemplating states that had never been parties to the litigation, as it requires that in suits presenting the kind of constitutional challenge at issue, where “a State … is not a party” the federal court “certify” to the attorney general of the state that there is such a suit.  So the argument that Section 2403(b) is not intended to authorize States to get back into a case they voluntarily chose not to appeal is at least as strong as the general argument about the Federal Rules of Appellate Procedure’s treatment of intervention.

[But even if Cooley were allowed to invoke Section 2403(b)’s intervention for argument purposes on behalf of California, this provision does not appear to contemplate that the state would actually be a party, which would be necessary for Article III standing.  Rather, it provides that the state will “have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the … law relating to the question of constitutionality.” (emphases added)  Thus, a proper Article III party must have already taken the appeal to the Ninth Circuit or the Supreme Court so that there is a constitutional “action, suit or proceeding in a court of the United States” in which California could intervene for the limited purposes authorized by Section 2403(b).  And insofar as Section 2403(b) allows limited intervention as of right by a state even in the Supreme Court, it provides that the court /Court “shall permit the state to intervene” (emphasis added) for limited purposes, not the attorney general to intervene.  Although the attorney general gets the certified notice of the suit, the statute does not prescribe that it is a state’s attorney general who gets to make an intervention decision.  As described above at the Court of Appeals level, Governor Brown might resist a (hypothetical as of this writing) Attorney General Cooley’s attempt to have California intervene at the Supreme Court.  And even if California (and perhaps federal) law ultimately sided with Cooley, as I argued above there would still need to be a proper Article III case in the Supreme Court for California to intervene in.]

Wednesday, October 27, 2010

2009 Decision Upholding Prop 8 Deeply Wrong, Article Argues

We’re right/We’re free/We’ll fight/You’ll see

Pardon the shameless self-promotion, but I just wanted to note that my article “Equality’s Centrality: Proposition 8 and the California Constitution” has been published by the Southern California Review of Law and Social Justice in Volume 19 Number 1 (Winter 2010), available here.   The piece analyzes text, history, precedent, and political theory to conclude that the California Supreme Court should have held in Strauss v. Horton that Prop 8 was a profound revision to the state constitution that could not be adopted via the initiative process.  Soon additional articles from this symposium issue by National Center for Lesbian Rights Legal Director Shannon Minter, University of Miami law professor Frank Valdes, and USC law graduate Joyce Hahn will also be available online.

Sunday, September 19, 2010

Prop 8 Trial Tracker Takes on Prop 8 Proponents' Appellate Brief

"Hey, Pearl, what's bugging you, girl?"

On Prop 8 Trial Tracker, Brian Devine has "attempt[ed] to provide some initial legal analysis of the Opening Brief filed by the Proponents of Prop. 8[,] writing about the issues of standing and jurisdiction."  You can read his take here.

I appreciate the value of trying to wade through the Proponents’ filings for the general public.  But I don’t know whether Brian Devine is an expert in the relevant legal areas. (I teach various courses in sexual orientation and the law, constitutional law, and federal courts.)  And the problem here is that significant parts of his analysis are wrong.

For example, he states (and reemphasizes in a comment) that “In Karcher, a New Jersey statute expressly gave the Speaker of the Assembly the right to defend the constitutionality of a law when the state’s Attorney General refused.”  I believe this is not true.  Rather, the district court “permitted this intervention [of Alan J. Karcher, in his representative capacity as Speaker of the New Jersey General Assembly; Carmen A. Orechio, in his representative capacity as President of the New Jersey Senate; and the New Jersey Senate] because the Legislature had been responsible for the enactment of the statute and because no other party defendant would defend it.”  The defendants made this point in their earlier (and successful) emergency motion to the Ninth Circuit Court of Appeals for a stay of Walker’s judgment.  Since there was no state statute there, nor here, it cannot distinguish Karcher v. May.

Moveover, Brown v. Board of Education was indeed filed as a class action, and whether or not the district court in that case (or the other state cases consolidated with Brown before the Supreme Court), the Supreme Court understood those cases as being class actions. So, since Perry was not even filed as a class action, the propriety of statewide injunction in Brown doesn’t settle the propriety of Walker’s injunction.

Likewise, Loving v. Virginia did not involve a suit for an injunction against the state; Richard and Mildred instead were seeking, and the Supreme Court granted, an overturning of their criminal sentences. Thus, even if the Proponents are right (though I don’t think they are) about the proper scope of Walker’s injunction, that would not conflict with Loving.

All this said, there is plenty of reason for hope still. My blog entry at http://cruz-lines.blogspot.com/2010/08/do-prop-8-proponents-have-standing-to.html gives a pretty lengthy, technical, and careful take on the standing issue.  I’ll also try to blog shortly about the scope of the injunction issue (just the two plaintiff couples, or everyone who may try to marry in California).  Ninth Circuit case law doesn’t clearly dictate that Walker’s injunction was too broad, and I’ll explore relevant Supreme Court precedent.  (In short, I think Vik Amar is wrong.)

But now, I must return to preparing to teach Federal Courts tomorrow morning (Monday, September 20).

Saturday, August 28, 2010

Sexual Orientation Discrimination and Sex Discrimination in the Prop 8 Trial Opinion

“A man should put the food upon the family plate”

One of the little-remarked aspects of Chief Judge Vaughn Walker’s lengthy opinion (here) following trial in Perry v. Schwarzenegger, holding California’s Proposition 8 unconstitutional, is its linkage of sex discrimination and sexual orientation discrimination in the context of marriage equality and marriage discrimination.  (I’ve flagged it for reporters.)  Loyola (Los Angeles) law professor Douglas NeJaime has blogged about this for the American Constitution Society (here).  It’s a relatively short read, very interesting and well worth checking out.

Friday, August 13, 2010

Do the Prop 8 Proponents Have Standing to Appeal?

But if you don't change yourself / You have no right to complain

On Thursday, August 12, U.S. District Court Chief Judge Walker issued his decision  to deny an indefinite stay (here) of his ruling that Proposition 8 is unconstitutional (here).  The $64,000 question now on many people’s minds is, will there be an appeal?  Governor Schwarzenegger and Attorney General Brown have stated that the government defendants will not appeal.  The official Prop 8 proponents, who intervened in the trial court to defend the measure, have already filed a lengthy “emergency motion” (here) with the U.S. Court of Appeals for the Ninth Circuit.

But the plaintiffs and Judge Walker have questioned whether the proponents even have the legal entitlement – “standing” – to appeal Walker’s ruling.  Although the answer is not clear, there is a strong argument that the proponents do not.   And if the Ninth Circuit and possibly the Supreme Court agree, then Judge Walker’s decision on the merits holding Proposition 8 unconstitutional and enjoining its enforcement will stand, restoring the freedom to marry to same-sex couples in California.

The question of the proponents’ standing to appeal, or lack thereof, is a complicated one, but it’s grounded in some basic constitutional principles.  Article III of the Constitution limits the federal courts to hearing “cases” or “controversies.”  For some years now the Supreme Court has interpreted this to mean that parties asking federal courts to act must have “standing.”  One constitutional requirement for standing is that the party suffer an injury sufficient to give him, her, it, or them an appropriate stake in the dispute.  This injury must be “concrete and particularized,” and it cannot be a mere “generalized grievance.”  It is not enough that people object to the government not following what they believe the law to be; the Supreme Court uses standing doctrine to limit the number of people who have the right to take up the time of the federal judiciary.  As part of this gatekeeping, the Court has said that the federal courts are not to be treated as "a vehicle for the vindication of the value interests of concerned bystanders."  So, parties need to be injured in some way more than just passionately disapproving of what the government is doing if they’re going to be able to have the federal courts pass on their complaints.

These requirements of injury and standing apply in appeals and not just at trial.  So, in a case called Diamond v. Charles in 1986, the Supreme Court rejected an attempt by a pro-life doctor to appeal a decision enjoining parts of Illinois’s abortion-restricting law.  The state government was a defendant at trial, lost, and opted not to appeal.  Pro-life physician Eugene Diamond had intervened as a defendant at trial, and he tried to appeal.  When the case came before the Supreme Court, the Court dismissed his appeal.  The Court held that Diamond did not show that he had personally suffered or been imminently threatened with an adequate injury.  “The presence of a disagreement, however sharp and acrimonious it may be,” the Court ruled, “is insufficient by itself to meet Art. III's requirements.”

The Prop 8 proponents are in the same position.  They intervened at trial to defend the measure they’d qualified for the California ballot because of their value interests in supporting mixed-sex only civil marriage and their sharp disagreement with the plaintiffs about Prop 8’s constitutionality or unconstitutionality, and because the governmental defendants refused to argue that Prop 8 was constitutional.  As in Diamond, the state was the original defendant, it lost, and it has chosen not to appeal; and now the proponents are trying to appeal to the Ninth Circuit.

In addition, in 1997 the Supreme Court decided Arizonans for Official English v. Arizona, a case dealing with ballot initiative proponents who wanted to defend their measure in the federal courts.  Because the Court held that subsequent developments made the suit challenging Arizona’s English-only initiative moot, it did not need to rule definitively on whether ballot proponents satisfy constitutional standing requirements.  But, in light of established standards for constitutional “injury,” the Supreme Court expressed “grave doubts” that the proponents would have standing in federal court.

Prop 8’s proponents therefore need some way to get around the force of the Diamond decision and the thoughtful dicta in Arizonans for Official English.  The basic gist of their argument is that, since California court decisions allow official ballot proponents to defend their measures in court, that should be enough special stake in challenges to ballot initiatives to satisfy the Constitution’s “case or controversy” requirement and thereby give them standing in federal court.  (The proponents’ standing or lack thereof didn’t really matter in the trial court because state defendants were present, and it was the state’s law that the plaintiff challenged; they therefore had a case or controversy.  The participation of the Prop 8 proponents at trial was like icing on the Article III cake, but we still need cake for the Ninth Circuit to have an appeal.)

The proponents are trying to rely on decisions allowing legislatures standing to defend their statutes as well as other dicta from Arizonans for Official English.  In Karcher v. May in 1987, the Supreme Court rejected an attempt by former New Jersey legislative leaders to appeal a decision enjoining a state law.  Like here, in Karcher the Attorney General and named governmental defendants refused to defend the law.  So the New Jersey legislature, represented by its then-officers, had intervened to defend the law and lost.  But the legislature refused to appeal, and the Supreme Court held that the officers who by then were former officers did not have standing themselves to appeal.  Arizonans for Official English characterized Karcher as “recogniz[ing] that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests.”

The Prop 8 proponents are arguing that they are like representatives of a state legislature, and that state law (here, California court decisions allowing ballot proponents to defend their measures) should suffice to satisfy constitutional standing requirements.  They argue that this state authorization to defend distinguishes them from the Arizona ballot proponents before the Supreme Court in Arizonans for Official English.

But Arizonans for Official English rejected the relevance of Karcher on the ground that the ballot proponents there “[we]re not elected representatives.”  The same is true of the Prop 8 proponents here.   Although Arizonans for Official English further noted that those proponents lacked state law authorization, the Supreme Court did not hold there or even say that this would be sufficient for constitutional standing.  At most the dictum there suggests that such authorization would be necessary.

This is where the uncertainty comes in.  Will the Ninth Circuit and/or Supreme Court rule that when a state authorizes ballot initiative proponents to defend successfully passed measures in state courts, that gives them enough stake in federal court suits challenging those measures to satisfy constitutional standing requirements?  Should they say that?

Arguably not.  In some of the cases relied upon by the proponents in their appeal to the Ninth Circuit, the state or federal legislatures had acted by majority vote to authorize particular parties to represent the entire legislature.  This afforded a significant limitation on the circumstances in which federal courthouse doors would be thrown open to people who merely disapproved of the way laws were being interpreted or enforced (or not enforced).  Moreover, in other cases relied on by the proponents, like U.S. v. Lovett decided by the Supreme Court in 1946 or Cheng Fan Kwok v. INS decided in 1968, the legislatures actually appeared simply as amicus curiae (“friends of the court”), not actual Article III parties; appellate jurisdiction over those cases was proper because the regular governmental defendants were in the case (even though they may have agreed with the plaintiffs there about aspects of the statutes’ unconstitutionality).  Granted, the Supreme Court’s decision in INS v. Chadha did allow Congress’s actual intervention as a defendant when the INS did not defend a challenged statute.  But the Court took pains to argue that the dispute there counted as a constitutional “case or controversy” wholly aside from Congress’s participation.

The Prop 8 proponents’ final argument for why they should be able to file an appeal in the Ninth Circuit claims that Judge Walker erred in denying Imperial County and related defendants to intervene in the suit, and that Imperial County would have Article III standing if that ruling were reversed.  It is not clear that Imperial County would have standing were it a party; Walker opined that it would not, and his reasoning seems sensible.

Regardless of the answer to Article III standing question for Imperial County, though, the fact remains that it is not a party.  And Judge Walker’s order denying intervention does not appear to be wrong.  Although Judge Walker did not rely on the tardiness of Imperial County’s motion to intervene, timeliness of a motion to intervene is a legal requirement for a non-party to join a case (whether intervention “as of right” or “permissive” intervention).  The plaintiffs made persuasive arguments that there was no objective justification for Imperial County to have waited as long as it did to move to intervene.  Judge Walker thought that the parties were not prejudiced by this tardiness and there was no evidence of bad faith, but it is not clear that those factors make Imperial County’s motion timely.

Moreover, Walker convincingly concluded that California law does not give local governments like counties interests separate from those of the state.  His analysis of the other elements of the legal test for intervention rights also seem right.  (The Prop 8 proponents’ motion to the Ninth Circuit makes too much of one poorly worded sentence where Walker wrote that “Imperial County’s ministerial duties surrounding marriage are not affected by the constitutionality of Proposition 8.”  But Walker’s opinion makes clear that he meant that the ministerial nature of the duties would not be affected whether or not Prop 8 were upheld or invalidated, and that he fully appreciated that the ministerial duty would be to issue marriage licenses as directed by the State Registrar, who will act based upon the outcome of the litigation challenging Prop 8.)

None of this means that it is impossible for the Ninth Circuit or the Supreme Court to identify new constitutional standing rules that would empower official ballot proponents like the Prop 8 proponents here, or that those courts could not reject Judge Walker’s eminently reasonable understanding of California law regarding issuance of marriage licenses and somehow find Imperial County to have both a right to intervene and Article III standing to pursue an appeal.  But if existing law is the touchstone, the plaintiff same-sex couples have the advantage here and the Prop 8 proponents should be held not to have standing to appeal in the absence of the state defendants’ deciding to do so themselves.

Wednesday, August 4, 2010

Prop 8 Unconstitutional, Injunction Against It Temporarily Stayed

In a nutshell:  Chief Judge Vaughn Walker has held that California's Proposition 8 violates the right to marry protected by the Due Process Clause and violates the Equal Protection Clause, discriminating on the basis of sexual orientation (which he concludes here is equivalent to discrimination based on sex), and doing so without even a rational basis.  As a remedy, Walker's opinion directs that enforcement of Prop 8 be enjoined.  However, Prop 8's defenders moved for a stay pending appeal; Walker has directed the plaintiffs to respond to their motion, and he has directed the clerk to stay his judgment until he has resolved this motion for a stay throughout the duration of the appeal process.

More detailed commentary to follow.

Sunday, July 11, 2010

DOMA Federal Definition Section Held Unconstitutional: Rulings Summarized

“Keep a tender distance/So we’ll both be free”

In a pair of lawsuits (Gill v. Office of Personnel Management and Massachusetts v. U.S. Department of Health and Human Services), the federal trial court in Boston held on July 8 that Section 3 of the Defense of Marriage Act (“DOMA”) was unconstitutional as applied to the plaintiffs.  DOMA Section 3 defines “marriage” to exclude same-sex couples for purposes of much federal law.  Seven same-sex couples married in the state and three surviving spouses who had been married there, represented by Gay and Lesbian Advocates and Defenders (GLAD), as well as Massachusetts itself, filed suit to challenge the exclusion of same-sex couples from specified federal programs:  three federal health benefits programs; certain Social Security benefits based on marriage to a same-sex spouse; joint filing status with the IRS; a state cemetery grants program (regarding burial of eligible military veterans, their spouses, and their children); and Medicaid.

Federal district court judge Joseph Tauro ruled (opinion here on Scribd) (thanks, Joe Sudbay) that Section 3 is not within the power granted by the Constitution to Congress to spend for the general welfare (and to put strings or conditions on its spending) and violates the Tenth Amendment’s protection of state sovereignty.  The court also held (opinion here on GLAD’s website) that Section 3 violates the Constitution’s guarantee of equal protection of the laws because it could not pass even the most deferential form of judicial scrutiny, rational basis review, because Section 3 lacked a rational relationship to a legitimate state purpose.

As in its defense of DOMA in litigation in California, the Obama Administration disavowed the justifications for DOMA reflected in the Congressional record.  (This is not surprising, since the legislative reports and discussions on DOMA are rife with anti-lesbigay sentiments unlikely to qualify as even legitimate governmental purposes.)  Instead, in the Tenth Amendment case brought by Massachusetts, the federal government argued that as applied to the cemetery grants and Medicaid programs, DOMA was a proper exercise of the power granted Congress by Article I of the Constitution to spend “for the common Defence and general Welfare of the United States.”  This “Spending Clause” has long been understood to allow Congress to put conditions on its expenditures.  Here, the Administration argued that limiting beneficiaries to different-sex married couples was a permissible condition on the challenged programs.

In a ruling that depended on its decision in the companion case brought by the same-sex couples and survivors, the district court held that DOMA is not a proper exercise of the conditional spending power.  The Supreme Court’s case law makes clear that the conditions Congress attaches to its grant programs “may not be used to induce the States to engage in activities that would themselves be unconstitutional.”  Because in the companion case the trial court held that DOMA Section 3 unconstitutionally discriminates against lesbigay people, the court held that the measure was not a permissible exercise of power under the Spending Clause.

The trial court also ruled that DOMA Section 3, as applied, violated the Tenth Amendment.  The court very quickly concluded that DOMA “regulates the States as States” because of the very large economic hit Massachusetts would take from the federal government due to DOMA if Massachusetts treats married same-sex couples equally with married different-sex couples.  Second, the court concluded that the authority to make marital status determinations is a core attribute of state sovereignty; the court based its ruling largely on a history of states (and not the federal government) deciding who may marry and a multitude of statements by the Supreme Court to the effect that “domestic relations” are a matter for state regulation.  Third, the court concluded that DOMA seriously limits Massachusetts’s ability to govern itself; federal non-recognition of marriages of same-sex couples would, due to DOMA, costs Massachusetts millions of dollars if it complies with its own constitution and allows same-sex couples to marry and treats them equally with other married couples.

In the suit brought by the same-sex couples and surviving members of same-sex couples, Judge Tauro held that DOMA’s federal refusal to recognize married same-sex couples as married for purposes of the specific programs mentioned in the first paragraph of this blog entry violated the constitutional guarantee of equal protection of the laws imposed on the federal government by the Due Process Clause of the Fifth Amendment.  Although the plaintiffs argued on a few different grounds that the constitutionality or unconstitutionality of DOMA should be analyzed under strict scrutiny (the most skeptical form of judicial review), the court determined that it need not decide whether those claims were right, for these applications of DOMA could not survive even rational basis review, the most deferential form of judicial scrutiny, which upholds challenged laws unless the plaintiffs can prove that the law does not bear even a rational relationship to a legitimate state interest.

The trial judge first quickly disposed of the reasons given in the House Report in support of DOMA when the law was adopted in 1996:  (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.  (The court addressed these because rational basis review requires rejection of any reasonably conceivable basis for the challenged law, not just consideration of the particular arguments offered by the government attorneys.)  The court held that none of these arguments really could justify DOMA, that the Supreme Court’s decision in Lawrence v. Texas (2003) meant that particular views of “morality” couldn’t justify it, and that using DOMA to express dislike or a belief in the inferiority of lesbigay people was constitutionally impermissible.

The court then rejected the argument offered by Obama administration lawyers: basically, that DOMA was an effort to go slowly and preserve the status quo in the face of a widely contentious social debate in the states over same-sex marriage.  Insisting that domestic relations are the exclusive preserve of the states (as the court had held in its Tenth Amendment reasoning), the court concluded that the federal government had no independent interest in generally defining who could marry.  Because the federal government had historically and still follows state marital status determinations in almost all cases, and state marriage laws vary widely in whom they let marry, the court concluded that DOMA could not be justified by a federal interest in uniformity.   And the status quo in 1996 when DOMA was adopted was that the federal government accepted state rules for marriage for purposes of federal laws depending on marital status.  Finding married same-sex couples and married different-sex couples not distinguishable in any relevant way, the trial court concluded that DOMA’s discrimination against same-sex couples violates constitution equal protection principles.   (Note that virtually none of this reasoning depended on the specific federal programs the exclusion from which the same-sex couples  were challenging.)

Monday, June 28, 2010

Hastings Needn't Pay for Christian Legal Society Discrimination

“We’re different in a good way/Together’s where we belong”

In Christian Legal Society v. Martinez, the U.S. Supreme Court today rejected an effort by CLS to challenge a rule at Hastings College of Law in San Francisco limiting “registered student organization” (RSO) status to groups that allow all students to participate, become members, and seek leadership positions, regardless of the student's status or beliefs.  Because CLS limits participation to students who subscribe to a specified set of religious beliefs (thereby excluding “unrepetant” sexually active lesbigay students), Hastings, a public law school in the University of California system, denied the group RSO status, which comes with certain benefits including financial support.  CLS filed suit, arguing that this “all comers” rule violated their First Amendment rights (applicable to the states because of the Fourteenth Amendment) to free speech and expressive association.  Voting five to four, the Court rejected those arguments today (full opinions here), leaving only a possibility that CLS might try on remand to the lower courts to show that Hastings discriminatorily applied its all-comers policy.

Associate Justice Ruth Bader Ginsburg wrote the majority opinion, which was joined by Associate Justices John Paul Stevens, Anthony Kennedy, Stephen Breyer, and Sonia Sotomayor.  At the outset, the majority limited the constitutional claims they would consider to challenges to the all-comers policy, which is how Hastings interpreted and implemented a rule written in terms as prohibiting specified forms of discrimination.  Because CLS had stipulated that this is how the policy is now interpreted and applied, and that is how the lower courts had analyzed the case, the Supreme Court majority held CLS to that concession.  The dissenting Justices (Associate Justice Samuel Alito joined by Chief Justice John Roberts and Associate Justices Antonin Scalia and Clarence Thomas), in contrast, tried at some length to call this factual stipulation into question, though they were unable to persuade the majority Justices to look at the other arguments CLS wanted to pursue.

The majority analyzed the RSO program as a kind of “limited public forum,” created by Hastings’s decision to open property (including money) under its control but to limit it “to use by certain groups.”  When the government creates such a limited public forum, its regulations of speech or association must be reasonable in light of the purposes and function of the forum and “all the surrounding circumstances,” and they must not discrminate on the basis of the viewpoint of the speakers, here, students groups admitted to the RSO program.  Hastings program ensured that students were not subjected to mandatory fees that could then go to groups that would exclude them; avoids inquiries into student groups’ motivations to discriminate; brings together diverse students and thus Hastings believed contributes to tolerance and understanding; and it reflected Hastings’s decision not to subsidize discriminatory conduct of sorts disapproved by state antidiscrimination laws.  CLS had other ways to insist on its membership principles and still get its message out and even to meet in school facilities, but “CLS enjoys no constitutional right to state subvention of its selectivity.”  The all-comers policy applied to all student groups regardless of their beliefs and so was viewpoint-neutral, the Court held.  The lower courts would have to determine whether CLS had properly preserved its argument that the all-comers policy was discriminatorily applied to them and, if it was, whether that was in fact the case and if so whether that violated CLS’s rights.

Justice Stevens joined the Court’s opinion but also wrote a separate concurring opinion to address one argument in Justice Alito’s dissent.  Hastings’s written Nondiscrimination Policy prohibits unlawful discrimination on various grounds, including discrimination on the basis of religion.  Alito and his dissenting colleagues asserted that, if Hastings refused to grant CLS an exemption from that policy, that would be “plainly” unconstitutional because applying the ban on religious discrimination to CLS would discriminate against the group on the basis of religion.  Justice Stevens’s concurrence explained why “[t]here are numerous reasons why this counterintuitive theory is unsound. Although the First Amendment may protect CLS’s discriminatory practices off campus, it does not require a public university to validate or support them.”  (Justice Kennedy also wrote a short concurring opinion, underscoring how the RSO program operated to bring diverse students together and how that differentiated it from a different public forum program that he had years earlier found to be unconstitutionally restricted in a case called Rosenberger v. Rector and Visitors of the University of Virginia.)

Justice Alito’s dissenting opinion as noted addresses different constitutional claims than just the one considered by the majority.  It views the all-comers policy as a pretext for Hastings to penalize CLS because of disagreement with or disapproval with CLS’s views.  And it complains that “the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups.”

State & Local Governments Must Honor Right to Keep & Bear Arms, Supreme Court Holds

“When I'm with a pistol/I sparkle like a crystal”

The U.S. Supreme Court today held in MacDonald v. City of Chicago, by a five-to-four vote, that the Fourteenth Amendment “incorporates” the Second Amendment right to keep and bear arms for the purposes of self-defense, so that state and local governments are bound by it.  (The full set of opinions is here.)  Two years ago the Court held in District of Columbia v. Heller that the Second Amendment conferred an individual right good against the federal government in a case that invalidated DC’s ban on handguns.  Now, the case against Chicago’s handgun ban will be remanded back to the lower courts, which almost certainly will hold the city’s law unconstitutional, and more litigation challenging to state and local gun control laws across the country, now with some success, may be expected in the wake of today’s decision.

The majority opinion was written by Justice Samuel Alito and joined at least in parts by the other “conservative” Justices: Chief Justice John Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, and (concurring only in parts of Alito’s opinion) Clarence Thomas.  These Justices believed that the right to keep and use handguns for self-defense is “deeply rooted in this Nation’s history and traditions” and that the framers and ratifiers of the Fourteenth Amendment (which applies to state and local governments, unlike the Second Amendment, which applies only to the federal government) considered the right to keep and bear arms fundamental.

The majority's decision was unsurprising.  Justice Scalia’s majority opinion in Heller had included much history that postdated the adoption of the Bill of Rights.  That history might have been relevant to show whether a right to keep and bear arms was deeply rooted in U.S. legal history and traditions, but it was on Scalia’s usual interpretive views irrelevant to what the framers of the Second Amendment meant when they adopted that provision, since that history came later.  Heller thus was clearly setting up today’s decision in MacDonald.

The majority and Justice Thomas disagreed about what provision in the Fourteenth Amendment protects the right to keep and bear arms.  The majority would follow much precedent and hold that it is the Due Process Clause (“nor shall any State deprive any person of life, liberty, or property, without due process of law”), whereas Justice Thomas would rely on the Privileges or Immunities Clause of that Amendment (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”).  This disagreement will not clearly have consequences for the types of laws that will be upheld or invalidated due to this right to keep and bear arms for self-defense.

Like Heller, though, MacDonald has left unanswered the question of what sorts of firearms regulations will violate the announced right to keep and bear arms for self-defense and what sorts of regulations will be permissible.  Although both cases rejected free-form “interest balancing,” neither specified a particular judicial test to govern future cases (or even the law challenged in MacDonald itself).  MacDonald repeated Heller’s reassurance that “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” would remain constitutional.  But like Heller, MacDonald has provided no reasoning for these reassurances, and no doctrinal test that they would satisfy that should generally be applied by courts considering challenges to gun control laws.

Justice Stevens dissented in MacDonald.  He agreed with Justice Alito’s conclusion that there is no cognizable right here under the Privileges or Immunities Clause, and the question thus is one of the substantive protection of liberty offered by the Due Process Clause.  More generally, Stevens advocated a broad judicial role in interpreting vague, general, or “open texture[d]” constitutional language such that in as the Due Process Clause.  This is an approach targeted at some length by Justice Scalia in his separate concurring opinion.  Ultimately though, a quick glance through Stevens’s opinion suggests, he views guns as conceptually distinct from self-defense, and as deadly, hence different from other rights protected by the Court under the Due Process Clause; he sees that governments in the U.S. have by and large extended much protection for firearms possession and use (and thus little need for judicial intervention; and he would rule in favor of Chicago here.

Finally, Justice Breyer wrote a dissenting opinion joined by Justices Ginsburg and Sotomayor.  These Justices agreed with Justice Stevens’s due process analysis.  They focused on the Court majority’s conclusion that the Fourteenth Amendment “incorporates,” or makes applicable to state and local governments, the Second Amendment.  Justice Breyer’s opinion revisited and further criticized the Heller majority's historical claims.  And it analyzed the claimed right by reference also to “the nature of the right; any contemporary disagreement about whether the right is fundamental; the extent to which incorporation will advance or hinder the Constitution’s structural aims, including its division of powers among different governmental institutions (and the people as well).”  Taking into further account the courts’ role as independent protectors of unpopular minorities, these dissenting Justices also agreed that Chicago's law should be upheld.

Thursday, June 24, 2010

Supreme Court Upholds Disclosure of Washington State Petitions That Challenged Domestic Partnerships

“Let the sunshine, let the sunshine in”

The Supreme Court of the United States today decided Doe v. Reed, rejecting by an 8-1 vote a facial challenge to a Washington state law treating referendum petitions with signatory information as public records available for inspection and copying. The anonymous challengers did not want disclosed the signers of a petition that unsuccessfully attempted to overturn improvements to Washington’s domestic partnership law. The Court held that they will have a chance when the case returns to the trial court to argue that as applied to Referendum 71 (R-71), Washington’s disclosure requirement violates the First Amendment. But it is not clear that the challengers will be able to succeed.

Chief Justice John Roberts wrote the majority opinion, which held that signing such petitions was activity protected by the First Amendment that therefore could be regulated by states only if they have “a sufficiently important governmental interest.” Here, the Court accepted Washington’s interest in protecting the integrity of elections as adequate to make the disclosure requirement generally constitutional as to referendum petitions. The Court remanded the case to the trial court, however, so that the plaintiffs could try to establish their other First Amendment argument: that the signers of R-71 should not be disclosed because they would be subjected to harassment (now, even though the election has passed and the repeal effort was voted down).

Justice Clarence Thomas dissented from the Court’s decision to uphold the petition disclosure requirement on its face and can be counted on to hold it unconstitutional as applied to R-71. Justice Sam Alito joined the majority opinion but wrote separately to urge that the challengers should have a very light burden of proof to establish a likelihood that disclosure would subject them to harassment, so he too would likely vote for the challengers if the case returns.

However, Justice Antonin Scalia, who did not join the majority opinion but agreed that the disclosure requirement was constitutional on its face, did not think that the First Amendment offers any secrecy protection for legislative acts. Governance by initiatives and referenda is as much lawmaking as is governance by legislatures passing bills, and in Justice Scalia’s plausible view no one is constitutionally entitled to engage in these actions in secret. Therefore, he has made clear that he would not vote to hold Washington’s disclosure requirement unconstitutional.

In addition, Justice Sonia Sotomayor, who did join the majority opinion, wrote a separate concurrence joined by Justices John Paul Stevens and Ruth Bader Ginsburg, who did not join the majority, making clear their disagreement with Justice Alito. In their view, those seeking to challenge disclosure of petitions would have a heavy burden under the First Amendment, and would have to show threats of harassment as serious as those faced by the NAACP in the Jim Crow South. Justice Stephen Breyer also filed a concurring opinion, and joined another concurring opinion by Justice Stevens, making clear that they too believed that the challengers would not have an easy burden at trial.

So, a majority of the Court (Justices Stevens, Scalia, Ginsburg, Breyer, and Sotomayor) all either doubt or deny that the challengers will succeed in arguing that disclosure of the R-71 petitions would violate the First Amendment. Given the paucity of actual evidence of constitutionally unprotected reprisals in the Referendum 71 campaign (see the excellent amicus brief by Lambda Legal, GLAD, NCLR, HRC, and the NLGTF amplyifying this point), this is as it should be.

Wednesday, June 16, 2010

Prop 8 Proponents Seek to Vitiate Marriages of Same-Sex Couples

“I'm holding on with both hands and both feet, oh/Promise that you won't pull the rug out from under me”

With closing arguments today in the lawsuit challenging California’s Proposition 8, the attorneys on both sides have filed answers to a series of questions posed by Chief Judge Vaughn Walker of the United States District Court for the Northern District of California. And in a bit of shameless overreaching, the attorneys for Prop 8’s official sponsors (the “defendant-intervenors” in the litigation) are seeking to overturn the estimated 18,000 marriages entered into by same-sex couples before Prop 8 was adopted.

After California’s voters approved Prop 8 in November 2008, it was challenged on state law grounds. In May 2009, the Supreme Court of California rejected those arguments, acting over Associate Justice Carlos Moreno’s cogent dissent. The Court was unanimous, however, in holding that Prop 8 had no effect on marriages entered into before it was adopted. Because that question of the meaning of state law was completely within the control of the California high court, there was no basis in law for Prop 8’s sponsors to ask the U.S. Supreme Court to review that conclusion.

Now, however, the attorneys for Prop 8’s sponsors are seeking to do an end run around that binding holding under the guise of legal remedies. One question Judge Walker had posed was: “If the court finds Proposition 8 to be unconstitutional, what remedy would ‘yield to the constitutional expression of the people of California’s will’?” The answer given by the defendant-intervenors’ attorneys? “[S]ustain Proposition 8 by giving it retrospective effect or invalidating the conflicting feature of California law.”

Translation: If Judge Walker thinks it unconstitutional for California to recognize marriages of some same-sex couples but not others depending on the date when they got married, Prop 8’s sponsors say Walker should order California to deny ALL same-sex couples’ marriages. Even though the federal courts don’t have the power here to tell the state supreme court that it is wrong about what state law (Prop 8) means.

Technically, the defendant-intervenors’ attorneys say they’re not actually asking Judge Walker to invalidate these 18,000 marriages, the San Francisco Chronicle reports, “but only to rule that government agencies, courts and businesses no longer have to recognize the couples as married.” So, in their view, these legal marriages should be legally inoperative in California.

Prop 8’s sponsors lost the fight to extend Prop 8 to existing marriages in 2009. They will almost certainly lose their outrageous effort to relitigate the meaning of Prop 8 this time.

-David B. Cruz

Wednesday, March 3, 2010

DC allows same-sex couples to marry

"vow to be strong and let the band roll on"

As noted in a Washington Post editorial, the District of Columbia today (March 3, 2010) becomes the first southern jurisdiction in the U.S. to issue marriage licenses to same-sex couples. With this important legal change in the nation's capital, the South just became a little more beautiful!

Thursday, January 21, 2010

Supreme Court Strikes Down Corporate Campaign Expenditures Limit

"Money makes the world go 'round"

In a special session, the U.S. Supreme Court today in a 5-to-4 First Amendment decision (Citizens United v. Federal Election Commission, official opinions here) invalidated key parts of the Bipartisan Campaign Reform Act of 2002 (BCRA or the McCain-Feingold Act) and overruled a twenty year old precedent about corporations' speech rights. I'll almost certainly have more to say after wading through the 183 pages of opinions, especially Justice Stevens's dissent joined by Justices Ginsburg, Breyer, and Sotomayor. For now, for-profit corporations and reunions are probably already planning the elections on which they plan to spend huge sums to run ads in support of candidates they favor.

Monday, January 11, 2010

Supreme Court Bars Broadcast of Prop 8 trial

"Who are you? what's in your mind?/Behind the mask a mocking smile"

Just hours before the trial of the constitutionality of California's anti-marriage-equality Proposition 8 was set to commence, the Supreme Court of the United States has blocked the airing of the trial video on YouTube as well as the planned live streaming to other federal courthouses. See the AP story in the Sacramento Bee here. Perhaps the Court blocked this broadcast because they’d also previously blocked the disclosure of the identity of donors to the anti-marriage equality campaign in Maine. But there’s a difference between keeping something out of evidence and keeping identified witnesses in open court from being seen by the people of the nation. Keep in mind that this is the same Supreme Court on whom lawyers Ted Olson and David Boies are pinning their hopes for a successful outcome from this lawsuit.