Category Archives: Constitutional Law


Same-Sex Marriage May Be On Its Way to the Supreme Court

The Sixth Circuit’s opinion today in DeBoer v. Snyder upheld the constitutionality of several same-sex marriage bans, reversing the district court decisions in Kentucky, Michigan, Ohio, and Tennessee.  This bucks the trend in which circuit courts have declared such bans unconstitutional: the Seventh Circuit in  Bogan v. Baskin and  Walker v. Wolf,  decided in September, regarding the same-sex marriage bans in Indiana and Wisconsin; the Tenth Circuit in Herbert v. Kitchen, an opinion issued in June regarding Utah’s prohibition and Smith v. Bishop, extending Herbert’s reasoning to the ban in Oklahoma; and the Fourth Circuit in Bostic v. Rainey regarding Virginia’s ban.

800px-United_states_supreme_court_buildingAnd – – – more importantly – – – it creates a “circuit split” making the possibility that the United States Supreme Court will accept discretionary review much more likely.

The Sixth Circuit’s opinion is a divided one by a three-judge panel. The majority’s basic theme is judicial restraint: judges, especially federal judges, should not be deciding the issue. The dissenting judge begins her opinion with a scathing assessment of the scholarly quality of the majority’s opinion:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy.

Legal analysis and a link to the full text of the opinion is available in my post on the Constitutional Law Professors blog here

Scottish Independence, Empire, and National Dress

While the Act of Settlement of 1701 is touted as a “resolution” of the relationship between Scotland and England that is again at issue with the Scottish independence vote,  legal regulation of clothes tells a different story.

Allan_M'Aulay,_Horace_Vernet,_1823The relationship between England and Scotland was long mediated through laws passed by the English to regulate appearance.   Unlike England’s regulations of the Irish – – – which focused on  mustaches, hairstyles, and mantles – – –  the target of the Scottish attire regulations was tartan and plaid.   Even after the 1688 deposing of the controversial and Catholic King James (known as James II as King of England and Ireland, and as James VII as King of Scotland), there were continuing battles and royal contestations.

In 1746, after another Jacobite “uprising” in the north, Parliament under King George II passed an “An Act for the more effectually disarming the Highlands in Scotland; and for the more effectually securing the Peace of the said Highlands ; and for restraining the Use of the Highland Dress; and for further indemnifying such Persons as have acted in Defence of His Majesty’s Person and Government, during the unnatural Rebellion.”[i] While much of the Act concerns firearms, including permissible search and seizure processes, section 17 prohibits Scottish dress:

no man or boy, within that part of Great Briton called Scotland, other than shall be employed as officers and soldiers in his Majesty’s forces, shall on any pretence whatsoever, wear or put on the clothes commonly called Highland Clothes (that is to say) the plaid, philibeg, or little kilt, trowse, shoulder belts, or any part whatsoever of what peculiarly belongs to the highland garb; and that no tartan, or partly-coloured plaid or stuff shall be used for great coats, or for upper coats.

By its terms, the provision only applies to males, but it is otherwise quite different from the “acts of apparel” of two centuries before. The punishment to be imposed reflects the severity of the infraction as a crime of “unnatural Rebellion” as well as the status of “Great Briton” as an empire: a first offense is imprisonment without bail for six months; a second offense would render a person “liable to be transported to any of his Majesty’s plantations beyond the seas, there to remain for a space of seven years.”

And so the colonies were “settled” by a plaid-wearing people.

Excerpted from Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our hairstyles to Our Shoes

Quotes from Statute: Act of Proscription, 19 Geo. II, ch. 39 (1746) in The statutes at large, from Magna Charta, to the end of the last Parliament, 1761 in eight volumes, (Owen Ruffhead,ed.) (London : printed by Mark Baskett, and by the assigns of Robert Baskett; and by Henry Woodfall and William Strahan, 1768-70), Vol. 6: 704-710.

[image via]

Lying in Political Campaigns is Constitutional

If you had any doubts that lies, falsehoods, or half-truths were fine during political campaigns, they should probably be laid to rest.

In a 25 page opinion  replete with bolded underlined language, Judge Timothy Black held Ohio’s statutory provisions prohibiting political false statements in Susan B. Anthony List v. Ohio Elections Commission.  The United States Supreme Court last term  heard the case as Susan B. Anthony List v. Driehaus on the issue of whether the matter was “ripe” for review, since no one was actually prosecuted under the law, and unanimously held it could be decided, sending it back to the lower courts.  The Court’s opinion made little mention of the substantive First Amendment arguments, although at oral argument, counsel for the anti-abortion group Susan B. Anthony List, referred to the Ohio Election Commission as a “ministry of truth,” a characterization later echoed by Justice Scalia.

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

These twinned rationales – – – the “Ministry of Truth” and the “flood of naked truth” – – – undergird the Judge’s doctrinal analysis, more of which is discussed here.  Although the judge gives a nod to his doubts that the truth will out given unlimited campaign spending constitutionalized by the Court’s interpretation of the First Amendment in Citizens United, that’s not sufficient to undermine the principles.

etching A Naked Truth

“A Naked Truth, or Nipping Frost” by Charles Williams circa 1803 via

Practice of Oral Suction Circumcision (MBP) and Religious Free Exercise

The United States Court of Appeals for the Second Circuit has ruled on a NYC Regulation requiring disclosure to parents about the possible adverse health consequences of “oral suction” circumcision.

Reversing the district judge’s decision rendered more than 18 months ago, the Second Circuit’s opinion in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene holds that the NYC regulation targeted at a certain circumcision practice is essentially one that as targeted at a certain religion and thus merits strict scrutiny under the First Amendment’s Free Exercise Clause.

The NYC regulation, §181.21, amended the NYC Health Code, by requiring specific consent and a warning for “oral suction” circumcision.   The unanimous panel, in an opinion authored by Judge Debra Ann Livingston, disagreed with the district judge and found that the regulation was not a neutral and generally applicable law.

The opening of the court’s opinion gives a good preview of the court’s perspective:

In Judaism, the “bris milah,” or ritual circumcision of infants, which has been practiced for millennia, celebrates a covenant with God and“derives explicitly from a commandment . . . in the Hebrew Bible.” 11 Encyclopedia of Religion, “Rites of Passage: Jewish Rites,” at 7818 (2d ed. 2005). As part of this ritual circumcision, some Orthodox Jews, particularly Satmar, Bobov, Lubavitch, and other Hasidic groups, perform direct oral suction of the circumcision wound in a ritual act known as metzitzah b’peh (“metzitzah b’peh” or “MBP”).

Relying on  Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the court reaches the conclusion that the

Regulation is not neutral because it purposefully and exclusively targets a religious practice for special burdens. And at least at this preliminary stage, the Regulation is not generally applicable either, because it is underinclusive in relation to its asserted secular goals: the Regulation pertains to religious conduct associated with a small percentage of HSV infection cases among infants, while leaving secular conduct associated with a larger percentage of such infection unaddressed.

Indeed, the court held that the question of whether the NYC Regulation singles out a specific religious practice is “simpler to address” than was true in Lukumi “in light of the Department’s own admission that metzitzah b’peh ‘prompted’ § 181.21 and that metzitzah b’peh is ‘the only presently known conduct’ covered by the Regulation.”

The court notes that “the conclusion that the Regulation is subject to strict scrutiny does not mean that § 181.21 is constitutionally deficient, for strict scrutiny is not invariably fatal in the context of free exercise claims.”

The Department has asserted interests that are substantial and may prove, on analysis, to be compelling. And the means it has chosen to address these interests (means that fall short of outright prohibition of MBP and that may further the goal of informed parental consent) may be appropriately tailored, albeit intrusive on a longstanding religious ritual. Mindful of the serious interests at stake on both sides, we express no view as to whether the plaintiffs have borne their burden of establishing a likelihood of success on the merits.

The court remanded, but denied the request for a stay of the enforcement of the regulation.  The district judge’s original 93 page order and opinion was largely devoted to the empirical evidence regarding the health effects of the practice; it looks as if she will be hearing the evidence on those very issues, but applying a heightened standard.

Should Rap Lyrics Be Used Against Author in Criminal Trial? New Jersey Supreme Court Says No

The question of whether one’s artistic expressions can be be used against one in a criminal trial occurs with some frequency.  This is not about being criminally prosecuted for the expression itself, as in an obscenity case.  Instead, this is about using artistic expression as evidence to prove that a defendant’s intent or motive to commit the crime.

403px-Bob-MarleyIn such scenarios, Bob Marley’s well known song “I shot the sheriff” could be used at trial if he had been prosecuted for murder of a law enforcement officer.   And Johnny Cash’s famous lyric “I shot a man in Reno just to watch him die,” could be introduced at trial if he had been prosecuted for first degree murder, presumably even if not in Reno, to show his bad intent.

In State v. Skinner, the New Jersey Supreme Court reversed the introduction of rap lyrics authored by the defendant before the alleged crime.  The court interpreted the commonplace evidentiary rule that requires a weighing of the “prejudicial impact” of evidence against its “probative value.”   The lyrics were deemed prejudicial because they were violent and obscene.  But the more important query was whether they were at all “probative”?  Which brought the court to Bob Marley, as well as to Edgar Allen Poe:

The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff,” actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. Defendant’s lyrics should receive no different treatment. In sum, we reject the proposition that probative evidence about a charged offense can be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced.

The opinion is decidedly grounded in the rules of evidence that govern criminal (and civil) trials rather than the First Amendment, but First Amendment protections for free expression cast a long shadow here.  The New Jersey Supreme Court’s unanimous opinion contains a lengthy passage describing the First Amendment discussion in the ALCU’s amicus brief, although the court never explicitly returns to the First Amendment in its own analysis.  The “nexus” language is key.  To the extent that expression details the accused crime, it is more likely to be admissible.  But the New Jersey Supreme Court makes clear that a song about how one shot the sheriff (and not the deputy) isn’t likely to be admitted in a criminal trial to prove your intent to commit murder.

[image via; more discussion on the Constitutional Law Professors Blog here].

What Should Congress Do After Hobby Lobby?

What can – – – and should – – – Congress do after “Hobby Lobby”?
In a word: lots!

You’ve most likely heard about the United States Supreme Court’s  divided and divisive opinion in “Hobby Lobby” – – now Burwell v. Hobby Lobby, Inc. consolidated with Conestoga Woods Specialties Corp. v. Burwell – – – on the last day of the Court’s Term in 2013-2014.  The majority, in an opinion authored by Justice Samuel Alito, held that closely held corporations (or their owner/shareholders) are entitled to a religious exemption from the federal mandate to provide health insurance to employees that includes contraceptive coverage.

image via

But what is getting lost in this discussion is that not only is the provision of contraceptive coverage based on federal laws (“Obamacare” and the regulations passed pursuant to it), but so too is the basis for the religious exemption.  The Religious Freedom Restoration Act, RFRA, is the statute interpreted by the Court to provide religious “freedom” to for profit corporations like Hobby Lobby.

Importantly, the decision is an interpretation of the word “person” in the RFRA statute, passed by Congress in 1993.  Equally important, the decision is an application of the requirement under RFRA that a person’s religion be “substantially burdened.”   And perhaps most important, the decision is an application of RFRA’s ultra-strict scrutiny that changed otherwise applicable First Amendment doctrine.  Under RFRA,  the government interest must be compelling and that interest must be effectuated by the “least restrictive means, even if the government action is a religiously neutral one of general applicability.

Given that the Court is simply interpreting a statute – – – and not the Constitution – – – Congress can amend the statute to nullify the Court’s interpretation.  Or Congress could repeal the statute – – – a statute meant to change First Amendment doctrine after all – – – in its entirely and restore the First Amendment.  Indeed, the repeal statute could be called the First Amendment Restoration Act.

I further discuss the option Congress has in a post for the London School of Economics blog. [Update: And here’s more]

Meanwhile, I’ll be more than interested in what New York’s Senator Kirsten Gillibrand has to say.



Your First Amendment Rights to Reveal Corruption

Frank Duveneck, Whistling Boy, circa 1872

Frank Duveneck, Whistling Boy, circa 1872

Imagine this: you’re hired as a director of a program for at-risk youth as part of a CUNY initiative.  When you take a look at the finances, you discover there’s a state legislator  listed on the payroll.  You soon figure out this legislator has never performed any work for the program.  You talk to some administrators, but you are warned by them – – – and then by a university lawyer – – –  that terminating the legislator’s employment could have negative repercussions for both you and the university.  Nevertheless, you do terminate the legislator from the payroll.  She tells people she is going to “get back” at you.
Instead, she’s investigated.  You testify at the grand jury and at her two criminal trials.  She’s convicted.  You’re fired by the same administrator who warned you not to get involved.

Those are the facts, more or less, in Lane v. Franks, decided by the United States Supreme Court.  The Court held that Edward Lane, the employee, did have a First Amendment right not to be retaliated against for his testimony on the criminal trial.  However, the Court held that the administrator – – – Steve Franks, president of the Alabama community college system who fired Lane – – – was not personally liable for damages because Lane’s First Amendment rights were not sufficiently “clearly established” at the time of the termination.

It’s a limited but important victory for the protection of the rights of university and other public employees.

More of my comments about the case and the opinion are on Constitutional Law Professors Blog here and on SCOTUSBlog here.

Scalia’s Establishment Clause

Justice Antonin Scalia via

Justice Antonin Scalia via

Dissenting from the denial of certiorari review in Elmbrook School District v. Doe, a case presenting the question of whether a school can hold its graduation in a church building, Justice Scalia had this to say:

Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

Scalia’s view threatens to reduce the Establishment Clause of the First Amendment to a matter of personal taste.  The Court’s denial of the petition for certiorari, however, lets stand the Third Circuit decision that held the graduation ceremony on a church did violate the Establishment Clause of the First Amendment.

There’s more about the case on the Constitutional Law Professors blog here.

United States Supreme Court to Hear Facebook Threats in Domestic Violence Case

An estranged husband posts this message to the partner who has previously obtained a protective order:


image via

Fold up your PFA and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place
Me thinks the judge needs an education on true threat jurisprudence

And prison time will add zeroes to my settlement
Which you won’t see a lick
Because you suck dog dick in front of children


And if worse comes to worse
I’ve got enough explosives
to take care of the state police and the sheriff’s department
[link: Freedom of Speech,]

Can the man be convicted of a “true threat” in violation of a federal criminal statute or is his speech protected by the First Amendment?  Should the prosecution have to prove that he had the “subjective intent” to threaten?

That’s the issue the United States Supreme Court will consider in Elonis v. United States.  The jury had convicted Mr. Elonis and the Third Circuit Court of Appeals affirmed.  The Court granted review today and there is more discussion on the Constitutional Law Professors Blog here.

Unanimous Supreme Court Says Anti-Abortion Group Can Challenge Ohio Election Law

The Court’s decision in Susan B. Anthony List v. Driehaus issued today rests on the doctrine of “standing” necessary for a party to invoke the power of the federal courts to hear a case.   The Court unanimously reverses the Sixth Circuit’s finding that the anti-abortion organization did not demonstrate it had a fear of future action by the Ohio Election Commission.  This means that the organization can challenge Ohio’s provision banning false statements in elections as violating the First Amendment.

Maybe the Court’s opinion is more political than it seems?   Here’s my discussion on the Constitutional Law Professors Blog.