Racial Classifications and Strict Scrutiny

Racial classifications are considered highly suspect, because race has often been employed by the law for invidious purposes. See, e.g., Plessy.

But suppose the pupose is not invidious. Here are two hypos once posed by Prof. Brest:

1. He posed the case of a public school principal who seats blacks on one side of the stage at graduation and whites on the other side for aesthetic reasons.

2. He also posed the case of a prison warden who temporarily separates black and white prisoners in order to quell an outbreak of racially motivated violence. Cf. Johnson v. California, casebook p. 789.

Apply strict scrutiny in each of these cases.

Montana Enacts a 9th & 10th Amendment Law

Travis Kavulla has an interesting article in National Review which he summarizes at his blog:

Gun Nuts

October 16th, 2009 by Travis Kavulla

Well, I have managed to get some work done this week, mostly in between fulminating about City Government…

The new National Review is out and includes my piece about the unprecedented Montana Firearms Freedom Act, our state’s rejection of federal regulation for arms made and staying within the state.

Gun Nuts
Montana sends a shot across the bow of federal regulation

Travis Kavulla

Great Falls, Mont.
Long has Montana been enthusiastic on the subject of guns, but the Montana Firearms Freedom Act takes the cake.

Passed this spring by the state legislature, a group of folks who meet for 90 days every other year, the law declares that any weapon or round of ammunition made in Montana and remaining within state borders “is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce.” This bold declaration of independence became law October 1, though even before then the Bureau of Alcohol, Tobacco, and Firearms had sent out a memorandum to gun dealers, the summary of which was: Don’t even think about it. A lawsuit is pending. [...]

The piece includes a first-person description of the Great Falls Gun & Antique Show and also an interview with freshman Rep. Wendy Warburton, a Republican who took a seat in Havre and has a lot of conservative verve. I am sure many Beltway readers will be stunned to learn there is a Great Falls other than the one in Virginia.

Does A's Right of Choice

trump B's right of conscience? Here is an excerpt from a post from the ReligionClause blog:

9th Circuit Denies En Banc Rehearing On Washington State Pharmacy Board Regs

In Stormans Inc. v. Selecky, (9th Cir., Oct. 28, 2009), the U.S. 9th Circuit Court of Appeals refused to grant an en banc rehearing. In July, a 3-judge panel in the case refused to preliminarily enjoin enforcement of Washington State Pharmacy Board regulations that require pharmacists to fill all prescriptions (including Plan B, the "morning after" contraceptive) even if doing so violates their religious beliefs. (See prior posting.)

Apply Glucksberg

To the argument that the right to same-sex marriage is a fundamental right under SDP analysis.

D&E vs. D&X Abortion Procedures

After Casey: 3D & 4D Ultrasound Requirement?

Following the Court's adoption of the "undue burden" test in Casey, would an informed consent law requiring that a woman have a 3D ultrasound before having an abortion impose an "undue burden" on the right to choose?

Technological advances in ultrasound are amazing. Here is a link that shows how this works. By the way, this site is not a "pro-life" advocacy site. It is a commercial site offering ultrasound service to expecting mothers.

Here is another link to some first trimester 3D images.

And here is an interesting article by Star Parker--Abortion and the politics of ultrasound--that discusses this issue.

Sixth Circuit Says No reproductive Autonomy For Men

Interestingly, the courts are totally unsympathetic toward men who wish the same right as women to become parents only by choice.

Link. Excerpt:

"A federal appeals court has upheld a lower court's decision making a Michigan man pay child support for his ex-girlfriend's baby. Matthew Dubay, a 26 year-old computer programmer, says men should have the same rights as women do under Roe v. Wade to exempt themselves from responsibilities for a child they don't want.

The 6th Circuit U.S. Court of Appeals issued its decision on Tuesday and sided with U.S. District Judge David Lawson, who rejected the lawsuit as frivolous.
The appeals court gave Dubay a limited victory by also rejected the state's bid to have him pay the cost of attorneys fees for their work in the appeal. Judge Lawson had ordered Dubay to pay the fees.

Dubay says that if women have the right to have an abortion and end their responsibility for an unborn child, men should have the same right.
He says his former girlfriend, Lauren Wells, did not want have children and told him during their relationship that she couldn't get pregnant.

Dubay attorney Jeffery Cojocar previously said he would take the case to the Supreme Court if the appeals court sided with the lower court's decision.
Lawson disagreed with Dubay's argument that Michigan's paternity laws violate the Constitution's equal protection clause. He said the law is unconstitutional because it requires fathers to pay child support "even if he did not want the child to be born."

"The fundamental flaw in Dubay's claim is that he fails to see that the state played no role in the conception or birth of the child in this case, or in the decisions that resulted in the birth of the child," Lawson wrote."

Hmmm. Life begins at "conception" for fathers and, although they have no part in the decision about whether a potential life is allowed to become an actual life or whether a live birth of a new person takes place, they should not look to the courts for protection.

Is this a kind of gender stereotype that is being imposed by the courts on men? Are the courts saying to fathers you should "man up" and "be strong" and "take personal responsibility" for the consequences of your sexual choices?

Lochner Query?

Why would a baker want to work more than 10 hours a day or 60 hours a week?

Hmmm. Maybe he kneads the dough!

Hattip: Prof. David Mann

Second Amendment Case: Cert Granted

From ScotusBlog:

Docket: 08-1521
Title: McDonald, et al. v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

• Opinion below (7^th Circuit)
• Petition for certiorari (08-1521)
• Brief in opposition
• Petitioner’s reply (08-1521)
• Brief amicus curiae of Arms Keepers
• Brief amici curiae of Texas, et al
• Brief amicus curiae of National Shooting Sports Foundation, Inc.
• Brief amicus curiae of American Civil Rights Union
• Brief amici curiae of Institute for Justice, and Cato Institute
• Brief amicus curiae of California
• Brief amici curiae of Gun Owners of America, Inc.,et al.
• Brief amici curiae of Constitutional Law Professors

• 
  

Incorporation of the Second Amendment

Circuit Courts are split. See here and here.

Justice Thomas and "Partial Incorporation" of the EC

Here

"Ten Tips for Excellence in Appellate Advocacy"

You might find this article by appellate lawyer and blogger Howard Bashman of interest.

Class Cancelled Friday Sept. 25

The Young Lawyers Seminar-- next Friday, Sept. 25-- will be held in Rm. 113. We have been evicted from our classroom to make room for this program.

So, as I announced in class today, we will not meet on Friday Sept. 25.

Instead, we will extend each class by roughly 7-10 minutes until we have made up 75 minutes.

I figure we have already made up about 20 minutes (including today's minutes), so we should be able to get this done in about 3 weeks.

Blogging From the Beach: Some Thoughts About Summum and Buono

Here is a post from Prawfsblawg:

Four of us are preparing short pieces on Summum for Northwestern Law Review’s Colloquy. The other contributors are Joseph Blocher (Duke) and Prawfs alums Christopher Lund (Wayne State) and Bernadette Meyler (Cornell). We are still working through the editing process, but I thought I’d preview my thoughts here. A draft of Chris Lund’s piece is already available on SSRN. I’ll post links to the others when they appear.

The two cases present the question in different ways. On the one hand, the Court recently handed down Summum, which involved a Ten Commandments monument that a private religious organization donated to a city. The Court concluded that the permanent monument became government speech when the city accepted the gift, displayed it in a municipal park, and formally took title to the monument itself. It therefore turned away a free speech challenge brought by Summum, a minority faith that wanted the city to display its monument⎯The Seven Aphorisms of Summum⎯alongside the Ten Commandments. Finding the existing monument constituted government speech allowed the Court to dismiss Summum’s claim that municipal officials selectively opened the parkland to only certain types of private sectarian speech in violation of the First Amendment. The Court reasoned that Pleasant Grove could exclude Summum’s monument because when the government itself speaks, it can select its message without giving equal airtime to other perspectives. (Of course government adoption of the Ten Commandments raised obvious antiestablishment questions, which the Court did not consider because of the way the case was litigated: Summum wanted its monument included, and did not want to risk the exclusion of both. Moreover, an antiestablishment challenge probably would not have been successful under Van Orden, as Chris Lund has pointed out.) You can think of the city’s decision to accept, display, and acquire the Ten Commandments monument as the opposite of privatization—it “publicized” a sectarian symbol, both in the sense that it formally took title to the display and in that it used public property to broadcast the message.

On the other hand, consider Buono, which the Court will hear on October 7. It concerns a white cross that has long stood in the Mojave National Preserve. (Photos and a description appear on the NPS's website.) After a lower court ruled that the cross was an unconstitutional establishment, Congress intervened and conveyed the small parcel of land containing the cross to a private organization. Privatizing the speech was meant to quell antiestablishment concerns by disassociating the federal government from the sectarian message. Yet Congress retained ties to the land, including a property interest and certain regulatory power. The transaction’s highly structured nature left the federal government open to charges of ventriloquism—using a private party to convey what essentially remained a government message.

Moreover, to the extent that Congress succeeded in privatizing the cross, it became vulnerable to just the sort of free speech objection that the government in Summum successfully evaded by publicizing the sectarian monument. It is not totally inconceivable to imagine a minority sect arguing today that once Congress has agreed to privatize one form of sectarian speech, it has a constitutional obligation to offer such deals to all private speakers on equal terms. As things turned out, however, only one constitutional issue is before the Court in Buono—the antiestablishment request to undo the privatizing transaction—and the government’s evasion of that claim is likely to succeed, at least in the short term.

One of these cases, then, asks whether government can avoid a constitutional difficulty by publicizing private sectarian speech, while the other asks whether government can evade a different constitutional problem by privatizing such expression. Both of them present their issues in the context of government stewardship over its property, specifically real property that it has opened up to the public as parkland. Both involve government evasion of one constitutional question in a way that may raise a countervailing constitutional difficulty. And both will probably be resolved in favor of the government on the ground that it has successfully insulated itself from a constitutional challenge through actions involving a property transfer. (Summum already has been decided that way). Generally, then, both cases concern the interrelationship between private law arrangements and public law obligations.

Differences separate the cases, of course. Most obviously, Summum was litigated exclusively as a speech case, while Buono presents only an antiestablishment question. Moreover, one concerns a locality, while the other challenges the federal government. Nevertheless, they can profitably be thought through together. Juxtaposing them may teach us something about government use of private law transactions to avoid public law obligations, especially constitutional duties.

One question is whether the outcome of each case is correct (assuming I have accurately predicted the result in Buono). What people think about that will depend on their underlying theories of antiestablishment and freedom of speech. Some may focus on citizens’ autonomy around matters of conscience and expression, while others may prioritize evenhandedness toward sects or viewpoints. Yet apart from the outcome question, there is the matter of whether straightforward application of property rules to these cases adequately serves the constitutional values at play. Does saying that a city’s acquisition of a sectarian monument effectively renders its message government speech, thereby putting it beyond the reach of the Speech Clause, capture everything the First Amendment either permits or requires? Does it satisfy public principles to say that Congress can manage its Establishment Clause obligations by means of a sophisticated land transaction that formally privatizes the religious symbol? In short, are courts asking the right questions?

State Website With Links to "Affirming Churches"

From the Religion Clause blog:

State Agency Removes Website Links To "Open and Affirming" Churches

Connecticut's Department of Children and Families has removed from its website links to "open and affirming" churches-- i.e. churches that welcome gays, lesbians and persons who are bisexual and transgender. Yesterday's Hartford Courant reports that the links were removed after the Family Institute of Connecticut (FIC), a group that opposes same-sex marriage, threatened to sue. It claimed that placing the links on the state agency's website violates the Establishment Clause as well as parental rights. FIC also asked the Department to make sure that the organization training social workers on issues faced by GLBT youth does not provide information on "open and affirming" churches in its training sessions.

Do you agree that these links violate the EC? If not, would you also allow the state to selectively post links to churches with "morally uplifting" views concerning the sinfulness of homosexual conduct? Would it be okay for the state to provide links to churches with Biblically sound doctrines of salvation? Or does neutrality require the state to refrain from endorsing all religious positions on homosexuality?

Student Religious Liberty Act

From the Religion Clause Blog:

Arizona Governor Signs Students' Religious Liberties Act

On July 10, Arizona Gov. Jan Brewer signed HB 2357, the Students' Religious Liberties Act. It bars public schools from discriminating against parents or students on the basis of religious viewpoints or expression, including religious viewpoints included in class assignments, artwork or coursework. It provides that students may pray or engage in religious activities or expression before, during and after the school day in the same manner that students are allowed to engage in nonreligious expression or activities.

Students are permitted to wear clothing that displays a religious message, or religious jewelry, to the same extent that clothing or jewelry with other messages or symbols is allowed. The law specifically, though, permits banning of clothing and accessories denoting criminal street gang affiliation. The new law goes on to provide that it shall not be interpreted to require any student to participate in prayer or other religious activity, or to otherwise violate a student's constitutional rights. Finally it requires exhaustion of internal administrative complaint procedures before a parent or student may bring a lawsuit to enforce the provisions of the statute. AP reported on the signing of the bill.

Who is Harmed?

By a cross display in the desert?

Here is a brief excerpt from the First Amendment Center's analysis of the next big EC case to be decided by the Supreme Court:

A large Christian cross stands hidden inside a plywood box atop an outcropping in a California desert, symbolizing the unsettled state of First Amendment law on the placement of religious symbols on public property.

But the box might soon be removed to reveal the cross again — or the cross could come down altogether — depending on how the Supreme Court rules in a longstanding dispute over the religious display.

The Court agreed yesterday to take up Salazar v. Buono, the case of the cross that serves as a war memorial in the federal Mojave National Preserve in San Bernardino County. It will test the attitude of the new Roberts Court — especially the newest justice, Samuel Alito Jr. — on how to resolve thorny establishment-clause questions.

If the high court rules that the cross violates the First Amendment, a brief by the Veterans of Foreign Wars warns, “The destruction of this and an untold number of like veterans memorials is sealed.” The brief cites everything from the Navy Cross to crosses at Arlington National Cemetery as possible targets.

But Barry Lynn, executive director of Americans United for Separation of Church and State, says, “The federal parks belong to all Americans and are not the appropriate place for the display of religious symbols.” Lynn adds, “Men and women of many faiths and none have served our country honorably … . A Christian symbol cannot memorialize them all.”

Keep your eye on this one.

If you are riding through the desert on a horse with no name, just avert your eyes if you are offended by this display. No harm, no foul?

Incorporation of Second Amendment: "A new Second Amendment case"

From SCOTUSBLOG (link):

Alan Gura, the Alexandria, Va., attorney who won the historic Supreme Court ruling last year establishing a personal right to have a gun for self-defense at home, started a new challenge in the Supreme Court Tuesday. It seeks to have the Second Amendment right enforced against state, county and city gun control laws. The petition in McDonald, et al., v. City of Chicago, can be downloaded here. (A docket number has not yet been assigned.)

Last week, the National Rifle Association filed a separate appeal raising the same issue (NRA, et al., v. City of Chicago, docket 08-1497). It is doubtful that the Court will consider the two new cases before recessing for the summer, probably late this month.

The McDonald petition involves four Chicago residents, the Second Amendment Foundation and the Illinois State Rifle Association, all challenging a handgun ban in Chicago. Their petition said the ban is identical to one struck down by the Supreme Court in its Second Amendment ruling last June in District of Columbia v. Heller (07-290).

The Heller decision, however, applied only to laws enacted by Congress or for the federal capital in Washington. The Court expressly left open the question of whether individuals would have the same right against state and local government gun restrictions.

Arguing that the Second Amendment right is a “fundamental” one, the new petition said that means that the Fourteenth Amendment guarantees that such rights “may not be violated by any form of government throughout the United States. Accordingly, Chicago’s handgun ban must meet the same fate as that which befell the District of Columbia’s former law.”

Part of their argument is that the Justices should step in now to resolve a dispute among federal appeals courts and state supreme courts on whether the Second Amendment is absorbed (technically, “incorporated”) into the Fourteenth Amendment — a part of the Constitution that operates against state and local government.

The question posed to the Court is whether the incorporation is accomplished under either the “privileges or immunities” clause of the Fourteenth Amendment, or under its “due process” clause. The petition urges the Court to use this case as an opportunity to reexamine the meaning of the “privileges and immunities” provision, which it noted was given an “almost meaningless construction” by the Court’s controversial decision in the Slaughter- House Cases in 1873.

The split of authority in lower courts “warrants speedy resolution, as it perpetuates the deprivation of fundamental rights among a large portion of the population,” it said. It would serve no purpose to let this conflict go on, the petition contended.

And here is a post from Volokh blog about news coverage of the incorporation issue:

L.A. Times Coverage of Second Amendment Incorporation Decisions:

The Seventh Circuit decision (from Chicago), holding that the Second Amendment doesn't apply to the states, is covered in a nearly-800-word story today. The Ninth Circuit decision (from Northern California) this April, holding that the Second Amendment does apply to the states, wasn't covered at all by the Times at the time. [UPDATE: I realized that my earlier locution here, "wasn't covered at all," was ambiguous; I meant wasn't covered at the time, but in context it could be read as saying that the article about the Seventh Circuit case doesn't mention the Ninth Circuit decision -- it does, about halfway down.]

To be sure, there are possible explanations: Today's story was by the Times' Supreme Court reporter, and this case is more likely than the Ninth Circuit case to go to the Supreme Court, for reasons I described here. The underlying controversy in the Seventh Circuit (a handgun ban) is more likely to interest people than the underlying controversy in the Ninth Circuit (a ban on gun possession on county property). And it's made higher profile by the controversy about Judge Sotomayor's participation in the Second Circuit's no-incorporation decision.

At the same time, the broad legal issue — whether state and local governments are bound by the federal right to bear arms — is the same. The Ninth Circuit decision was the one that created the circuit split, and it did tee things up for the Court to consider the Second Circuit's incorporation case (again, discussed here) — perhaps not perfectly, but still in a way that strikes me as newsworthy. The Ninth Circuit decision is the one that suggests some gun laws may be unconstitutional, which seems to me a pretty newsworthy matter. And the Ninth Circuit case was more local than the Seventh Circuit case.

So it seems to me that both cases would have been newsworthy to the L.A. Times, the Ninth Circuit case at least as much as the Seventh Circuit case. But as I noted shortly after the Ninth Circuit decision, the Ninth Circuit case wasn't covered in the L.A. Times at the time

Likewise, the Washington Post mentions the Seventh Circuit case (though in a heavily Sotomayor-focused article) and didn't mention the Ninth Circuit case when that came down.

Great New Scalia Quote

From his dissent in Caperton:

A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed—which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.

Or, as I like to say, not everything bad is constitutionally forbidden, and not everything good is constitutionally required. But sometimes it seems like that is what the Court tries to accomplish.

Exam Summer 2009

The exam is a 3-hour closed book exam which consists of three questions for a total of 200 points.

Question One is a short essay of approximately 100 words or less that counts for 25 points.

Question Two is a short essay of approximately 200 words or less that counts for 50 points.

Question Three is a longer essay of approximately 1500 words or less that counts for 125 points.

The exam 4 software does have a running word count feature that allows you to keep track of your word limits.

Good luck. Together, we have survived 3 hours a day of reading Supreme Court prose. As a fellow survivor of pre-session, I will try to remember the immortal words of the Bard in their original beauty when grading your exams:

The quality of mercy is not strained.
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives and him that takes.
Tis mightiest in the mightiest; it becomes
The throned monarch better than his crown.
His scepter shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings.
But mercy is above this sceptered sway;
It is enthroned in the hearts of kings;
It is an attribute of God himself;
And earthly power doth then show like God's
When mercy seasons justice.