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