Romer and the Nebraska Marriage Amendment

In Romer, the Court said that Colorado Amendment 2 failed rational basis review because the nearly infinite breadth of the amendment was not rationally related to the legitimate state interests of protecting the liberty of landlords and employers from restrictive gay rights laws. See p. 998-1000. In other words, the means employed were extremely overinclusive with respect to the legitimate governmental purpose of economic liberty. How does Romer apply to the Nebraska Marriage Amendment?

The Nebraska Constitution (art. I, sec. 29) provides:

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

Neb. Const. art. I, sec. 29 (2000);
Adopted 2000, Initiative Measure No. 416.

Is the Nebraska marriage amendment extremely broad like Amendment 2, or does it narrowly deal with only the issue of marriage and close-substitutes for marriage?

The Eighth Circuit (in the Bruning case) upheld the Nebraska Marriage Amendment and said it is rationally-related to the legitimate interest in "steering procreation into marriage?" Is there a strong government interest in encouraging procreation to take place within a marriage between the procreating partners? In other words, is out-of-wedlock procreation a social problem that the state has a legitimate interest in discouraging? If so, is it rational to limit the "responsible procreation" program to couples whose sexual relationships might result in procreation?

Although the Romer Court said it was applying the rational basis test, some commentators view the decision as actually applying some kind of medium rare scrutiny to Amendment 2. Did Justice Kennedy's reluctance to ratchet up the level of review for sexual orientation discrimination affect the outcome of Bruning? How would the case come out under intermediate scrutiny or strict scrutiny?

Guns Stop People From Killing People!

How about a little Second Amendment update!

In today's column, George Will posits this ironic headline from the mainstream media:

No one saw the possible problem with the word "despite" in this headline: "Gun crime continues to decrease despite increase in gun sales."

Have a great Thanksgiving.

Nebraska Marriage Amendment

Here is the text of the Amendment, Nebraska Constitution (art. I, sec. 29) , which I helped draft:

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

Neb. Const. art. I, sec. 29 (2000);
Adopted 2000, Initiative Measure No. 416.

Is this Nebraska Amendment constitutional under the 14th Amendment?

Obamacare Case Granted Cert

The Gotham Times has the story.

Here is an excerpt:

The Supreme Court agreed to hear appeals from just one decision, from the United States Court of Appeals for the 11th Circuit, in Atlanta, the only one so far striking down the mandate. The decision, from a divided three-judge panel, said the mandate overstepped Congressional authority and could not be justified by the constitutional power “to regulate commerce” or “to lay and collect taxes.”
The appeals court went no further, though, severing the mandate from the rest of the law.
On Monday, the justices agreed to decide not only whether the mandate is constitutional but also whether, if it is not, how much of the balance of the law, the Patient Protection and Affordable Care Act, must fall along with it.
Even the Obama administration, while arguing that the mandate is perfectly constitutional, has said that it is “absolutely intertwined” with two other provisions — one forbidding insurers to turn away applicants, the other barring them from taking account of pre-existing conditions. 

Some are calling this the Supreme Court's "Term of the Century" because so many important cases are before the Court this year.

What's Good For Peter and Paul

Is Good For Kody, Meri, Janelle, Christine and Robyn. No?

From the ReligionClause Blog:

"Sister Wives" Challenge Utah's Ban on Polygamy

A lawsuit was filed in federal district court in Utah yesterday by the polygamous family featured on the TLC series "Sister Wives" challenging the constitutionality of Utah's statute which bars polygamy.  The complaint (full text) in Brown v. Herbert, (D UT, filed 7/13/3011) summarizes the claims of Kody Brown and his 4 wives as follows:

To the extent that Article III of the Utah State Constitution, Utah Code Ann. §30-1-2, and ... §30-1-4.1 are used as the basis for the criminalization of plural relationships or families, the Brown family seeks a declaration that these laws are unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment ... and the Free Exercise, Establishment, Free Speech, and Freedom of Association Clauses of the First Amendment....

According to the Salt Lake Tribune, plaintiffs' lawyer filing the lawsuit-- George Washington University Prof. Jonathan Turley -- at a press conference said: "We can’t embrace privacy as a principle and pick and choose who can enjoy it."  Utah Attorney General Mark Shurtleff says polygamy is different because it involves not just consenting adults, but also their entire families. According to AP, Utah has not prosecuted  prosecuted anyone for polygamy under its bigamy statute since 2003. However, according to the complaint in the lawsuit, the Browns have been subject to criminal investigations in Utah.

Sex for Phillies Tickets

Protected under Lawrence? Link

Suppose a man asks a woman on a date to attend the World Series. She accepts, goes to the game at his expense, and then they have sex at his apartment after the game. Protected under Lawrence?

Suppose a woman places an ad in the personals section of the New York Review of Books: "Busy forty-something professional woman seeks sexual relationship with busy professional man." They meet in a bar and she is arrested by the undercover police officer who responded to her ad? Protected under Lawrence?

Pro-Life Nurses Sue Hospital

Here is a Press Release about a law suit recently filed by ADF, a public interest law firm I often work with:

FOR IMMEDIATE RELEASE

12 nurses sue NJ hospital for forcing them to participate in abortions

ADF represents nurses in lawsuit against Univ. of Medicine and Dentistry of NJ
Tuesday, November 01, 2011

ADF attorney sound bite:  Matt Bowman

NEWARK, N.J. — Twelve nurses represented by Alliance Defense Fund attorneys filed suit Monday against their employer, a hospital run by the University of Medicine and Dentistry of New Jersey, for requiring them to participate in abortions. Federal and state law both protect them from being forced to do so.

“Pro-life nurses shouldn’t be forced to assist in abortions against their beliefs,” said ADF Legal Counsel Matt Bowman. “No less than 12 nurses have encountered threats to their jobs at this hospital ever since a policy change required them to participate in the abortions regardless of their religious objections. That is flatly illegal.”

Federal law prohibits hospitals that receive certain federal funds from forcing employees to participate in abortions. UMDNJ receives approximately $60 million in federal funds annually. In addition, New Jersey law states, “No person shall be required to perform or assist in the performance of an abortion or sterilization.”

In September, UMDNJ initiated a policy change and began telling Same Day Surgery Unit nurses that they must assist abortions. The hospital imposed the policy on the nurses in October and repeatedly threatened that they must assist abortions or be terminated.

When one nurse objected to assisting abortions on the grounds of her religious beliefs, a supervisor responded that UMDNJ has “no regard for religious beliefs” of nurses who object to participating in abortions.

The hospital scheduled the nurses to begin training to assist abortions on Oct. 14. The training involves actually assisting surgical abortions, which the nurses believe is, in the words of the U.S. Supreme Court, “an act of violence against innocent human life.”

If the court does not issue an order requested by ADF attorneys that stops the training sessions while the lawsuit moves forward, the nurses and their colleagues will continue to be scheduled one by one to undergo the training and then to assist abortions on a regular basis. The lawsuit also requests that the hospital be ordered to return part of the federal taxpayer money it has received in light of its violation of federal law.

Demetrios K. Stratis, one of nearly 2,100 attorneys in the ADF alliance is local counsel in the case, Danquah v. University of Medicine and Dentistry of New Jersey. ADF is currently involved in a similar lawsuit in New York state court involving a nurse at Mt. Sinai Hospital.

• Photo of nurse Lorna Jose-Mendoza, who is scheduled to assist with abortions Nov. 4 against her religious objections
• Pronunciation guide: Bowman (BOH’-min)

On the Road Again--No Class Wednesday & Thursday October 26 & 27

     Brooklyn Bridge (just after I purchased it for a bargain price from some guy named Rocky) August 2010



I will be speaking about federalism and liberty at Idaho Law and Montana Law next week.

Thus, class is canceled on Wednesday and Thursday October 26 & 27. I think we have now used 5 of our 7 class cancellation days.

Justice Scalia: “I’m hoping that the ‘ living’ Constitution will die,”

The great debate continues this time between Justice Scalia and Justice Breyer. These two buddies appeared together recently and debated the merits of the so-called "living Constitution." Here is an excerpt:

Scalia and Breyer have often appeared together to spar cheerfully with each other about their starkly different views regarding the notion of a living Constitution.
“I’m hoping that the ‘ living’ Constitution will die,” Scalia said, adding that the controversial nature of recent confirmation proceedings is partly attributable to a notion that the Constitution evolves. “It’s like having a mini-constitutional convention every time you select a new judge.”
But Breyer, no stranger to Scalia’s views, struck back, saying that Scalia’s view could produce “rigidity” and interpretations that might not work for people living in the 21th century.

Link.

Of course, Breyer is correct that the existing Constitution may need to be changed to meet the needs of people living today.

But, also of course, the real issue is who should amend the Constitution--an unelected body of 5 lawyers acting as an ongoing constitutional convention with the power to propose and ratify amendments, or we the people through the Art. V Amendment process?

And if the Amendment process is too difficult to be workable, maybe we should amend Art. V to require a Constitutional Convention to be called every 20 years, as Jefferson suggested, to propose modern amendments for ratification.

What are some of your thoughts?

No Class Wednesday October 5

I'm heading off to St. Louis next week to speak at SLU and Wash U law schools.

For next Thursday's class, lets be prepared to discuss two short assignments--Nos. 9 & 10.

The Tea Party's Constitution

I. Article V and My Proposed Amended Art. V

                                    Art. V

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

                             My Proposed Amended Art. V

1. The words and phrases of this Constitution shall be interpreted according to their ordinary meaning at the time of their enactment, which meaning shall remain the same until changed pursuant to Article V; nor shall such meaning be altered by reference to the law of nations or the laws of other nations. [I borrowed most of this language from Randy Barnett’s proposed federalism amendment]

2.  Whenever a majority of either House of Congress shall deem it necessary, such House shall propose Amendments to this Constitution, which shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States.

3. Whenever the Legislatures of any five of the several States shall deem it necessary, such Legislatures shall propose Amendments to this Constitution, which shall be valid to all Intents and Purposes, when ratified by the Legislatures of three-fourths of the several States.

4. Congress, on the application of the legislatures of two thirds of the several States, shall call a convention for proposing amendments, which shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States.

5. Anything to the contrary herein notwithstanding, no state, without its consent, shall be deprived of its equal suffrage in the Senate.

II. Constitutional Convention ("Con Con")

The second method created by Article V for amending the Constitution provides that Congress “on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments.” Again, any amendments proposed by the Constitutional Convention will become law only “when ratified by the legislatures of three fourths of the several states.” So, to be clear, under this second method, four separate actions are required in order to amend the Constitution:

First, two-thirds of the states must apply to Congress for a constitutional convention.

Second, Congress, at least in theory, must—shall—call a constitutional convention.

Third, the constitutional convention must then propose certain constitutional amendments.

And, fourth, the proposed amendments must then be ratified “by the legislatures of three fourths of the several states.”

 III. Some Tea Party Proposals

Prof. Barnett's proposed federalism amendments include:

--a proposal to replace the income, gift and estate taxes with a uniform “fair” tax on consumption; 

--a proposal to restrict the commerce and spending powers of Congress in order to restore them to what Randy believes is their original understanding; 

--a balanced budget amendment with a Presidential line item veto; 

--a term limits amendment for Congress

--repeal of Seventeenth Amendment, which provides for the direct election of United States Senators instead of, as before the Seventeenth, appointment by state legislatures

IV. The "Repeal Amendment"

My primary focus: Prof. Barnett’s “Repeal Amendment,” which I believe may well be able to get political traction. After a series of meetings between Prof. Barnett and Tea Party activists, they decided to go forward with the following proposed amendment:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose and that particularly describe the same provision or provisions of law or regulation to be repealed.

V. Madison and Federalist No. 45

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

VI.  Commerce Clause and tenth Amendment

Art. I Section 8.

The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The Tea Party's Constitution

I will be giving a Law School Colloquia Presentation next Wednesday Sept. 28th (at Noon in Room 113) on "The Tea Party's Constitution." This is just a sexy title for a proposal, first made by Prof. Randy Barnett of Georgetown Law, to call a constitutional convention for the purpose of proposing constitutional amendments designed to limit the power of the Federal Government and to increase the powers retained by the States and the People.

This presentation is open to everyone, so if you are interested in discussing the possibility of a constitutional convention please come.

GOP's Pledge To America

Consider this pledge for Congress: "Require every bill to be certified as constitutional before it is voted on."

And now consider this "analysis" from the MSN web site:

Not so harmless, however, is the promise to require every bill to be certified as constitutional before it is voted on. We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary. An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary. 

Is it an "encroachment on the judiciary" for Congress to consider, for example, whether proposed legislation exceeds its own power under the Commerce Clause? Even if Congress takes a more narrow view of its own power?

Class Cancelled

We will not have class next Wednesday Sept. 21, 2011.

This is the second of our seven required class cancellations.

"Get-it-rightism"

I hope you enjoyed getting an opportunity to talk with Justice Thomas.

It was one of the highlights of my 32 years here.

My take away from his noon chat was the label he uses to describe his search for the textual meaning of the Constitution--"get-it-rightism!"

I love that phrase.

Next Week

No Class on Wed (Sept. 14) and Thursday (Sept. 15).

However, we will meet with Justice Thomas and Prof. Berger's class at 10:30-11:30 am on Thursday Sept. 15 in the Auditorium. Please be thinking of some questions you would like to ask Justice Thomas.

Justice Thomas Article

Here is a great recent article about Justice Thomas from the New Yorker.

He will be meeting with our class soon, and this article is worth a quick read.

U.S. Const. Art. V

Article V

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Government Disapproval of Religion

Jay Wexler's article available here.

Stanley Fish on "What Does the First Amendment Protect"

From NYT (link)

Here is the article:

July 4, 2011, 8:30 pm

What Does the First Amendment Protect?

By STANLEY FISH

Stanley Fish on education, law and society.

In the two First Amendment cases handed down last week — one about limiting sales of violent video games to children, the other about Arizona’s attempt to make public financing more attractive to candidates — the dissenting justices contend that the protection of speech is not really the issue at all.
In his dissent to Brown v. Entertainment Merchants, Justice Stephen Breyer declares that this is not a case, as the majority claims, about “depictions of violence”; rather it is a case about “protection of children.” What Breyer is doing (or attempting to do) is shift the category under which the matter of dispute is to be considered. According to Justice Antonin Scalia, writing for the majority, depictions of violence merit First Amendment protection because they are speech, not acts. Breyer replies that the video games in question are in fact acts, although they are, he acknowledges, acts “containing an expressive component.” That component, he argues, does not outweigh or render irrelevant the “significant amount of physical activity” involved in playing these games, activity in the course of which players do not merely see violent things but do violent things.
The danger Breyer wants to protect children from is not the danger of being exposed to violence, but the danger of being initiated into violence. This happens (or can happen) when game-players are required not merely to view violent acts passively, but to perform them by making a succession of choices (with a button or joystick) that decide the fate of the characters they have created.

Justice Samuel Alito, who concurs in the result because he believes the law to have been poorly drafted but disagrees with the majority’s reasoning, provides an example. Compare, he says, the reader of a novel depicting violence with a video-game player “who creates an avatar that bears his own image; who sees a realistic image of the victim … in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands.” Are these experiences the same?, Alito asks, and answers no. The difference, which Scalia labors to deny (“Certainly the books we give to children … contain no shortage of gore”), is sufficient, Alito thinks, to justify the state’s interest in regulation, even though he finds the present attempt at regulation flawed.
Breyer frames the issue precisely when he declares, “This case is ultimately less about censorship than it is about education.” Education is important in a democracy, he explains, because it gives us a means of raising “future generations committed cooperatively to making our system of government work.” The implication is that a generation immersed in violent video-games will be committed not to cooperation but to actions less helpful to the flourishing of the country.
Justice Clarence Thomas, writing another dissent disguised as a concurrence, shares Breyer’s concern that children be protected from influences that might turn them into damaged citizens. He reminds us of Noah Webster’s admonition that children’s minds be “untainted till their reasoning faculties have acquired strength and the good principles which may be planted … have taken deep root”; and he cites a 1979 opinion in which Justice Lewis F. Powell declares that “the State is entitled to adjust its legal system to account for children’s vulnerability.” Children are vulnerable, according to this theory, because they have not yet developed the ability to distance themselves from what is put before them. Interactive video games increase this vulnerability and lead not merely to the consuming of bad images, but to the possibility of becoming a bad person. This is the corruption that will follow, Alito fears, from allowing “troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence.”
Breyer drives the point home: “…extremely violent games can harm children by rewarding them for being violently aggressive in play, and thereby often teaching them to be violently aggressive in life.” Violent video games, in short, are not representations that deserve First Amendment protection; they are acts with harmful consequences and children deserve to be protected from them.
Although its subject matter could not be more different, Arizona Free Enterprise v. Bennett, displays the same opposition between a libertarian concern for freedom and a consequentialist concern for the corruption that attends unregulated activity. In this case it is not a child but the political system that is in danger of corruption, and the source of corruption is not a violent game but the desire of private individuals to purchase the votes of office-holders.
That at least is the view of Justice Elena Kagan, writing in dissent: “Campaign finance reform over the last century has focused on one key question: how to prevent massive pools of private money from corrupting our political system.” In Kagan’s formulation, “private money” equals “special interests,” whereas those who “rely on public, rather than private moneys, are ‘beholden [to] no person.’” Therefore by “supplanting private cash, public financing eliminates the source of political corruption.”
No says Chief Justice John G. Roberts, writing for the majority. Arizona’s public financing scheme, he contends, is an unconstitutional restriction on free speech because it penalizes privately financed candidates for being successful. Expenditures by privately financed candidates and the groups supporting them trigger the awarding of matching funds to candidates who have accepted the limits that come along with public funding. Roberts concludes that “any increase in speech is of one kind … that of publicly financed candidates.” So even if “the matching funds provision did result in more speech … in general, it would do so at the expense of impermissibly burdening (and thus reducing) the speech of privately financed candidates.”
But that parentheses — “and thus reducing” — is a little too fast. How exactly does the fact that in response to your expenditures an opponent with fewer resources will be given additional funds reduce your speech? You can still get to spend as much as you want and to say as much as you want. What you don’t get to do is overwhelm the voices of less affluent candidates and their supporters. As Kagan points out, “what petitioners demand is essentially a right to quash others’ speech … they would prefer the field to themselves, so that they can speak free from response.” The Arizona law, she adds, can hardly be characterized as a restriction on speech..
It follows, Kagan asserts, that “public financing furthers a compelling interest” — the prevention of corruption — and does so without diminishing anyone’s speech rights. The conclusion, she believes, is inescapable “[e]xcept in this Court,” where the majority declares that the state interest in leveling the playing field “cannot justify undue burdens on political speech.” But, to make the point again, there is no burden unless being prevented from being the only speaker with a megaphone is a burden, and it is not. In the majority decision, a compelling state interest is set aside because of a restriction on speech that has not occurred.
In some exasperation, Kagan remarks, “Only one thing is missing from the Court’s response: any reasoning to support [its] conclusion.” That’s not quite right. The reasoning is contained in an assumption that is the reverse of Kagan’s: private money, rather than being the vehicle of corruption, is the vehicle of speech, and therefore you can’t have too much of it, no matter what its effects. The First Amendment, says Roberts, “embodies our choice as a Nation that, when it comes to … speech, the guiding principle is freedom—the ‘unfettered interchange of ideas’ — not whatever the State may view as fair.”
Roberts does not have to reply to Kagan’s points — he can even concede them — because in his view they are irrelevant. “When it comes to protected speech, the speaker is sovereign.” Other considerations (like corruption and fairness) may be in play, but the rights of the speaker — in this case the rights of the spender — are paramount. They are what the First Amendment protects. Kagan disagrees: “The First Amendment’s core purpose is to foster a healthy vibrant political system full of robust discussion and debate,” and the Arizona law, with its mechanism for increasing participation is, she maintains, true to that purpose.
And there you have it: a clash between the worship of freedom of speech and a concern for the quality of public life in relation to which free speech may sometimes be asked to take a back seat. It is the same clash that pits the freedom to play video games against society’s interest in fostering a generation of young adults responsive to its ideals and aspirations. We have seen this before — in the pornography cases, in the crush-video case, in the case upholding the right of an anti-gay ministry to picket the funerals of soldiers — and we shall certainly see it again.

FYI: Washington Post Article on This Term and Next Term

link

Court Decides Two Free Speech Cases

From How Appealing blog:

"Freedom of Speech Is Buttressed as U.S. Supreme Court Caps Nine-Month Term": Greg Stohr of Bloomberg News has this report. And in today's edition of The Wall Street Journal, Jess Bravin reports that "Court Conservatives Prevail; Videogame, Campaign-Finance Rulings Cap Term That Broadened Free Speech."

Today's Endorsement Controversy

From ReligionClause blog:

Wednesday, June 22, 2011

Atheists Complain Over Renaming of Brooklyn Street As "Seven In Heaven"

Monday's Brooklyn Paper reports that American Atheists has complained over the renaming of a portion of a Brooklyn, New York street to honor seven firefighters who were among those killed at the Twin Towers on 9-11.  The new street sign in honor of the men reads "Seven In Heaven Way." American Atheist spokesman David Silverman said: "It’s improper for the city to endorse the view that heaven exists. It links Christianity and heroism." Community Board 6 member Tom Miskel responded: "Almost every religion has some form of heaven. It’s not just specific to Christianity."

Why Would NBC Even Think To Do This?

BETHESDA, Md. -- NBC issued an on-air apology Sunday for omitting the words "under God" from the Pledge of Allegiance during its coverage of golf's U.S. Open.

The words were edited out of a clip of children reciting the oath -- a move immediately noted by viewers, who took to Twitter and various blogs to voice their anger, the Huffington Post reported.

In a statement during the broadcast, NBC commentator Dan Hicks said, "We began our coverage of this final round just about three hours ago and when we did it was our intent to begin the coverage of this U.S. Open Championship with a feature that captured the patriotism of our national championship being held in our nation's capital for the third time.

"Regrettably, a portion of the Pledge of Allegiance that was in that feature was edited out. It was not done to upset anyone and we'd like to apologize to those of you who were offended by it."

Read more: http://www.foxnews.com/politics/2011/06/19/nbc-apologizes-for-omitting-under-god-from-pledge-during-us-open-broadcast/#ixzz1PuqT3lY0

Both Fridays (the 24 and the 1st)?

Someone suggested in the comments that we take both Fridays off (both the 24th and the 1st) and make up the 100 minutes by starting a little early and ending a little late.

I have already gone over about 20 minutes (I love talking about the First Amendment and sometimes its hard to stop--sorry)!

So, I figure if we start 10 minutes early (i.e. at 11:20) and end 10 minutes late (i.e. 1:20) Monday through Thursday next week we will have out 80 minutes made up.

It is up to you all. I can go either way.

Let me know what you all think tomorrow first thing.

Rick Duncan

No Class Friday June 17

As I announced in class, one of our two scedulaed class cancellations will be this Friday, June 17.

I have not decided on the second Friday off. Should it be June 24? Or July 1?

Help me out.

For Thursday June 9

Read assignment three plus read the Allegheny County case linked as part of Assignment 4.

Cheers, Rick Duncan

For Our First Class--Please Comment on This Hypo

Assume that a local public high school puts up a large "gay pride--stop homophobia" poster on the wall in the front hallway in order to celebrate Gay Pride Month.

A few conservative religious students and their parents, offended by this poster and its ideological message, complain to the school district's superintendent, who orders the school's principal to take down the display.

How should the Constitution handle a case like this?

Should students and parents offended by the poster have a right to demand it be removed from the public schools? Suppose they claim that it makes them feel like outsiders in the school, because the school's poster amounts to a public endorsement of the idea that the dissenters' religious views about human sexuality and marriage are wrong and perhaps even immoral?

Or should the law tell the dissenters "if you don't like the poster, then avert your eye and don't look at it."

Should GLBT students and allies who want to be able to view this poster have a free speech right, as a willing audience for the poster, to demand that the poster not be removed under fire to appease dissenters who are offended by the poster?

Or should the federal courts stay out of this matter and allow the political process to decide which posters may be displayed and which may be removed at the behest of those who are offended?

Who are the heroes of this hypothetical and who are the villains? Explain your conclusions.

Please feel free to write your answers as comments right here on the blog.

Anonymous comments are fine; just be civil and respectful of others.

New Free Speech Case

From Yahoo news:

Jilted ex-boyfriend puts up abortion billboard

 

 

ALAMOGORDO, N.M. – A New Mexico man's decision to lash out with a billboard ad saying his ex-girlfriend had an abortion against his wishes has touched off a legal debate over free speech and privacy rights.
The sign on Alamogordo's main thoroughfare shows 35-year-old Greg Fultz holding the outline of an infant. The text reads, "This Would Have Been A Picture Of My 2-Month Old Baby If The Mother Had Decided To Not KILL Our Child!"

Fultz's ex-girlfriend has taken him to court for harassment and violation of privacy. A domestic court official has recommended the billboard be removed.

But Fultz's attorney argues the order violates his client's free speech rights.

"As distasteful and offensive as the sign may be to some, for over 200 years in this country the First Amendment protects distasteful and offensive speech," Todd Holmes said.

The woman's friends say she had a miscarriage, not an abortion, according to a report in the Albuquerque Journal.

Holmes disputes that, saying his case is based on the accuracy of his client's statement.

"My argument is: What Fultz said is the truth," Holmes said.

The woman's lawyer said she had not discussed the pregnancy with her client. But for Ellen Jessen, whether her client had a miscarriage or an abortion is not the point. The central issue is her client's privacy and the fact that the billboard has caused severe emotional distress, Jessen said.

"Her private life is not a matter of public interest," she told the Alamogordo Daily News.

Jessen says her client's ex-boyfriend has crossed the line.

"Nobody is stopping him from talking about father's rights. ... but a person can't invade someone's private life."

For his part, Holmes invoked the U.S. Supreme Court decision from earlier this year concerning the Westboro Baptist Church, which is known for its anti-gay protests at military funerals and other high-profile events. He believes the high court's decision to allow the protests, as hurtful as they are, is grounds for his client to put up the abortion billboard.

"Very unpopular offensive speech," he told the Alamogordo Daily News. "The Supreme Court, in an 8 to 1 decision, said that is protected speech."

Holmes says he is going to fight the order to remove the billboard through a District Court appeal.

San Francisco's Ban on Circumcision and Religious Liberty

I don't know if we will have time to cover this in class, but here is a post from the ReligionClause blog on a cutting edge issue:

Tuesday, May 24, 2011

Constitutionality of San Francisco's Proposed Circumcision Ban Debated

A number of posts around the blogosphere in recent days debate the constitutionality of San Francisco's upcoming ballot issue (see prior posting) that would ban male circumcision on individuals under 18 years of age except in cases of clear medical necessity, with no exception for religiously mandated circumcision. The posts look at three related issues: free exercise issues (under state and federal law), parental rights issues, and the so-called "hybrid rights" doctrine (free exercise claims reinforced by a parental rights claim). Here are links to some of the more thoughtful analyses:

• Eugene Volokh, Proposed San Francisco Circumcision Ban (with No Discussion of Religious Freedom In This Post) [discussing parental rights issues].
• Eugene Volokh, Proposed San Francisco Circumcision Ban, and Religious Freedom
• Slate's Jeremy Singer-Vine, Snip: A San Francisco ballot measure would ban circumcision. Is that legal? [discussing free exercise issues]
• Michael Helfand, Why San Francisco Ballot Measure Proposing Circumcision Ban Is Unconstitutional [discussing hybrid rights theory]
• Mirror of Justice, Circumcision and Hybrid Rights

Cyber-Bullying Laws and First Amendment

From Volokh blog:

 

First Amendment and Proposed Restrictions on Bullying (and Cyber-Bullying) of K-12 Students

Eugene Volokh • May 17, 2011 4:04 pm

The U.S. Commission on Civil Rights held a briefing last Friday on bullying (and cyber-bullying) of K-12 students; there were many people speaking about various aspects of this question, and in particular about whether and to what extent the federal government should get involved. I spoke about the First Amendment issues created by broad “anti-bullying” or “anti-harassment” policies, whether imposed by the federal government or by state or local governments.
If you’re interested in this subject, you might check out the videos of the various panels here (see the main item, and the first three related items). My own brief presentation starts at about 20:23, with follow-up questions and answers at 57:35, 1:01:00, and 1:13:58. You can also look at the Department of Education Office for Civil Rights Dear Colleague letter to which I refer, and see my written testimony.

Snyder v. Phelps--"Lesson Plan"

The Harlan Institute has a great "lesson plan" on the Phelps "funeral picketing" case. Here.

EC Standing Decision

From ReligionClause blog:

Friday, April 15, 2011

7th Circuit: No Standing To Challenge National Day of Prayer

In Freedom From Religion Foundation, Inc. v. Obama, (7th Cir., April 14, 2011), the U.S. 7th Circuit Court of Appeals held that Freedom from Religion Foundation and its members lack standing to challenge either the constitutionality of the federal statute that creates a National Day of Prayer or the Presidential proclamations issued under that statute. While all three judges concluded that plaintiffs lack standing, the opinion by Judge Easterbrook (joined by Judge Manion) swept more broadly in doing so that did the concurring opinion by Judge Williams.

As to the statute-- 36 USC Sec. 119-- which directs the President to issue a Proclamation each year declaring the first Thursday in May as a national day of prayer, Judge Easterbrook concluded that since it merely imposes a duty on the President, only the President is injured enough by the statute to have standing. Others cannot "object to a statute that imposes duties on strangers."  The President's proclamation, on the other hand, are addressed to plaintiffs, like all other citizens. However since the Proclamations merely make a request that citizens are free to deny, no one is injured by them. Judge Easterbrook continued:

Plaintiffs contend that they are injured because they feel excluded, or made unwelcome, when the President asks them to engage in a religious observance that is contrary to their own principles.... [However] offense at the behavior of the government, and a desire to have public officials comply with (plaintiffs’ view of) the Constitution, differs from a legal injury. The “psychological consequence presumably produced by observation of conduct with which one disagrees” is not an “injury” for the purpose of standing.

Judge Williams, concurring, found this case to be closer, and the Supreme Court precedent to be less clear, that Judge Easterbrook asserted.  Williams wrote:

The [Supreme] Court simply has not been clear as to what distinguishes the psychological injury produced by conduct with which one disagrees from an injury that suffices to give rise to an injury-in-fact in Establishment Clause cases.... [The Supreme] Court has decided cases in many contexts where the plaintiffs claimed that they were hurt by exposure to unwelcome religious messages from the government.... In all of those cases, the Court treated standing as sufficient, even though it appears that nothing was affected but the religious or irreligious sentiments of the plaintiffs..... 

In the case, the district court had found that plaintiffs had standing, and later concluded that the federal statute violates the Establishment Clause. (See prior posting.) AP reports on the decision. FFRF immediately issued a press release announcing that it will seek en banc review.

Taxpayer Standing Under EC--This Term's Blockbuster

From the Con Law Prof blog:

No Standing in Establishment Clause Challenge: Arizona Christian School Tuition Organization v. Winn Opinion Analysis

The Court issued its 5-4 opinion in Arizona Christian School Tuition Organization v. Winn, reversing the Ninth Circuit's finding that the Arizona statute violated the Establishment Clause by holding that the challengers lacked standing.
In his concurring opinion, Justice Scalia identifies the "struggle" between the majority and dissent as being whether the challenge to the Arizona tuition tax credit falls within the narrow exception of Flast v. Cohen, 392 U.S. 83 (1968).  For Scalia (joined by Thomas), this struggle is unnecessary because the "misguided" decision of Flast v. Cohen should be repudiated.
The Arizona provision at issue in Winn allows a tax credit for a contribution to school tuition organizations, STOs, many of which are religious.
Writing for the Court, Justice Kennedy quickly sets the tone by noting that the challengers "sought intervention from the Federal Judiciary."  In further description of the facts, Kennedy notes that while the challengers "may be right that Arizona’s STO tax credits have an estimated annual value of over $50 million," the Arizona Christian School Tuition Organization is also right that "the STO program might relieve the burden placed on Arizona’s public schools," and the "result could be an immediate and permanent cost savings for the State."
Kennedy thereafter analyzes the requirement of particularized injury:

Even assuming the STO tax credit has an adverse effect on Arizona’s annual budget, problems would remain. To conclude there is a particular injury in fact would require speculation that Arizona lawmakers react to revenue shortfalls by increasing respondents’ tax liability.[citation omitted].  A finding of causationwould depend on the additional determination that any tax increase would be traceable to the STO tax credits, as distinct from other governmental expenditures or other tax benefits. Respondents have not established that an injunction against application of the STO tax credit would prompt Arizona legislators to “pass along the supposed increased revenue in the form of tax reductions.”

Thus, the injury must be economic, give that the "STO tax credit is not tantamount to a religious tax or to a tithe and does not visit the injury identified in Flast."
Kagan, writing for the four dissenting Justices, argues that there is little, if any, difference between appropriations and tax expenditures:  "Cash grants and targeted tax breaks are means of accomplishing the same government objective," and taxpayers who "oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other."
Kagan criticizes the Court's opinion as offering a "road map —more truly, just a one-step instruction—to any government that wishes to insulate its financing of religious activity from legal challenge":

Structure the funding as a tax expenditure, and Flast will not stand in the way. No taxpayer will have standing to object. However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts. And by ravaging Flast in this way, today’s decision damages one of this Nation’s defining constitutional commitments. “Congress shall make no law respecting an establishment of religion”—

Kennedy's Opinion for the Court ends by appealing to the prospect of a different type of damage and constitutional commitment: limited judicial power.

Few exercises of the judicial power are more likely to undermine public confidence in the neutrality and integrity of the Judiciary than one which casts the Court in the role of a Council of Revision, conferring on itself the power to invalidate laws at the behest of anyone who disagreeswith them. In an era of frequent litigation, class actions, sweeping injunctions with prospective effect, and continuing jurisdiction to enforce judicial remedies, courts mustbe more careful to insist on the formal rules of standing,not less so. Making the Article III standing inquiry all the more necessary are the significant implications of constitutional litigation, which can result in rules of wide applicability that are beyond Congress’ power to change. The present suit serves as an illustration of these principles. The fact that respondents are state taxpayers does not give them standing to challenge the subsidies that [Arizona statute] §43–1089 allegedly provides to religious STOs. To alter the rules of standing or weaken their requisite elements would be inconsistent with the case-or-controversy limitation on federal jurisdiction imposed by Article III.

 RR

This Term's Major Religious Liberty Case

The WSJ has an interesting preview by Prof. David Skeel (here).

And here is the text of the piece:

While much of the nation was digesting the implications of the election Wednesday morning, the Supreme Court heard arguments in a long simmering dispute over the constitutionality of tax credits for religious and other private schools. For those who read Supreme Court tea leaves, Arizona Christian School Tuition Organization v. Winn is the church-state case to watch.
In 1997, Arizona passed a statute permitting residents to contribute up to $500 ($1,000 for married couples) that they would otherwise pay in taxes to a nonprofit "school tuition organization" of their choice. STOs are charitable groups that give scholarships to students in private schools.
Because many STOs provide their scholarships to religious schools, a group of citizens sued, challenging the program as an unconstitutional establishment of religion and asking the courts to kill it. Last year the Ninth Circuit Court of Appeals agreed and struck it down.
I expect the Supreme Court to reverse that decision; but the grounds on which it chooses to reverse may be just as important as the outcome of the case itself.
In the 2002 case Zelman v. Simmons-Harris, a divided court (5-4) upheld a Cleveland school voucher program, reasoning that parents, not the state, decided how to use the vouchers. So even though 96% of parents used their vouchers for Catholic private schools, the state didn't violate the separation of church and state by issuing the vouchers in the first place.
In Arizona, similarly, it is citizens—not the state—who decide whether to use their tax credit for a religious STO or a nonreligious one. The pending Supreme Court case, therefore, seems to fit comfortably within the Zelman precedent.
Still, the outcome is no sure thing. Justice Anthony Kennedy is often the court's swing vote, especially in church-state decisions, and he is never predictable. And the most revealing vote might be cast by Justice Elena Kagan, the court's newest member.
Justice Kagan was appointed to the court after the retirement of Justice John Paul Stevens, who had served since 1975. On matters of church and state, Justice Stevens generally adopted a stance of strict separation. He tartly demurred from the court's endorsement of vouchers in Zelman, dismissing the decision as "profoundly misguided."
It was "quite irrelevant," he argued, that parents rather than the government were the ones deciding whether to use their vouchers for a religious or non-religious school. Anything that might "remove a brick from the wall that was designed to separate religion and government," he said, must be prohibited.
Though Justice Stevens was arguably the staunchest advocate of separation, his view in Zelman reflected that of the court's liberal wing, which now includes Justice Kagan (and Justice Sonia Sotomayor).
Yet the Arizona case is the kind of issue on which Justice Kagan, who is likely to be reliably liberal on many issues, could part ways with her liberal colleagues. As dean of Harvard Law School, Ms. Kagan was widely praised for fostering political and religious diversity, creating a welcoming attitude toward conservative and evangelical professors and students. Whatever her vote in the Arizona case, her background suggests she'll be less averse than her predecessor to accommodating religion in public life.
The other reason to watch this case closely is that the outcome may turn on "standing." To challenge a government program, a plaintiff must show that he or she has been injured by it. Accordingly, several justices asked on Wednesday whether the Arizona program puts any of the plaintiffs' money at stake. Arizona argues that it doesn't, as the program merely gives residents tax credits (as opposed to taxpayer-funded vouchers). If the court agrees, then the plaintiffs may not have standing to sue.
The Supreme Court has long interpreted "injury" leniently in church-state cases, treating them as exceptions to the rules of standing. Were it to conclude that the Arizona taxpayers don't have standing to sue, the court would reverse past practice—and could greatly reduce the number of possible future challenges to state programs that implicate religion in some way.
That would leave more of the decisions about programs that benefit religious schools to state and local lawmakers—and fewer of them to unelected judges.

Mr. Skeel is a law professor at the University of Pennsylvania and co-author of the blog "Less Than the Least."