OrCon Law

Washington State Supreme Court Upholds Defense of Marriage Act

In Andersen v. King County, the Washington Supreme Court ruled that the state's Defense of Marriage Act, which restricts marriage to opposite-sex couples, is not unconstitutional.  The various opinions in the case can be accessed here.

Wheat, pot, and porn in interstate commerce

The U.S. Court of Appeals for the D.C. circuit has held that the Commerce Clause permits Congress to criminalize purely interstate possession of child pornography.  The Court applied Wickard v. Filburn, 317 U.S. 111 (1942) (wheat) and Gonzales v. Raich, 125 S. Ct. 2195 (2005) (marijuana).  In so holding, the D.C. Circuit joined the conclusions of every other federal court that has interpreted Raich (the Fourth, Tenth, and Eleventh Circuits).  Two judges joined the majority and the third concurred in a separate opinion. 

In this case, plaintiff entered a conditional guilty plea, admitting he downloaded about 75,000 files of child pornography onto his computer while working for FOX News in D.C. ("possession").  He moved to dismiss the indictment on grounds that, as applied, the law prohibiting knowingly possessing child porn that was transported through interstate or foreign commerce exceeded Congress's authority.  The district court ruled against plaintiff's motion to dismiss.  The circuit court affirmed.  It noted that the Raich Court observed that wheat- and marijuana-possession laws both prohibit the cultivation, for home consumption, of a fungible commodity for which there is an established interstate market.  The circuit court noted that the interstate economic effects of child porn are "even more compelling than those in Raich or Wickard.  In contrast to wheat or marijuana, the supply of electronic images of child pornography has a viral character:  every time one user downloads an image, he simultaneously produces a duplicate version of that image.  Transfers of wheat or marijuana merely subdivide and existing cache; transfers of digital pornography, on the other hand, multiply the existing supply of the commodity * * * subsequent possessors may further propagate the images. * * * This multiplying effect highlights the importance of eliminating a possessor's stash in the first instance * * *."  In sum, the court held that a rational basis exists exists to regulate the intrastate possession of child porn because failure to do so would leave a significant gap in Congress's efforts to eliminate the market for sexually exploitative uses of children. 

The concurring judge noted the difficulties arising from "the apparent inconsistency of Raich with Lopez [514 U.S. 549 (1995)]," which set out three categories in which Congress may regulate commerce.  The concurrence questioned "how purely intrastate possession of a product that has previously traveled interstate substantially affects interstate commerce."  The concurring judge wrote that he has "hope that the High Court in some further decision gives us some better method of reconciling its holdings on the extent of congressional power under the Interstate Commerce Clause."

http://caselaw.lp.findlaw.com/data2/circs/dc/053161a.pdf

Illinois college must reinstate Christian Legal Society's official status

The U.S. Court of Appeals for the Seventh Circuit recently held that Southern Illinois University (SIU) must reinstate the official student organization status of the Christian Legal Society (CLS) chapter at SIU because SIU's revocation of official status violated the First Amendment. 

CLS is a group of about 6-12 students.  The group expressly forbids voting membership to anyone who engages in or affirms homosexual conduct or any sexual relations outside of a traditional marriage.  Applicants for membership can repent from past conduct to become members.  Someone complained to SIU about CLS's membership requirements.  After investigating, the SIU law school dean revoked CLS's registered student organization status as violating SIU's policy requiring equal employment and educational opportunities and a policy requiring student organizations to adhere to federal and state laws on nondiscrimination and equal opportunity.  CLS sued SIU and moved for a preliminary injunction on grounds that SIU violated CLS's First Amendment rights of free speech, expressive association, and free exercise of religion, and CLS's Fourteenth Amendment rights of due process and equal protection.  The district court denied the motion.

A 2-judge majority of a Seventh Circuit panel reversed.  The majority reasoned that it was skeptical that CLS had violated SIU's policies, in part because "CLS requires its members and officers to adhere to and conduct themselves in accordance with a belief system regarding standards of sexual conduct, but its membership requirements do not exclude members on the basis of sexual orientation.  * * * CLS's membership policies are thus based on belief and behavior rather than status, and no language in SIU's policy prohibits this."  (Emphasis in original). 

Regarding the expressive-association claim, the majority held that it had no difficulty concluding that SIU's application of its nondiscrimination policies burdens CLS's ability to express its ideas, applying Dale v. Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (held: the presence of an openly gay scoutmaster would significantly burden the organization's right to oppose or disfavor homosexual conduct and the state's interests did not justify such a severe intrusion on the Boy Scouts' rights to freedom of expressive association), Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) (held: a state's public accommodations law could not be applied to force a St. Patrick's Day parade organization to accept a parade unit marching under a banner of an Irish gay and lesbian group), and Healy v. James, 408 U.S. 169 (1972) (held: state college had violated an organization's (Students for a Democratic Society) associational rights because the college refused to confer student organization status on SDS). Under the free speech analysis, the majority also concluded that, on a spartan record, SIU's affirmative action policy is viewpoint neutral on its face, but was not applied in a viewpoint-neutral manner.

http://caselaw.lp.findlaw.com/data2/circs/7th/053239p.pdf

Allegations of Catholic favoritism in the Navy

The U.S. Court of Appeals for the D.C. Circuit recently held that merely alleging a violation of the Establishment Clause, without more, is sufficient to satisfy the irreparable harm factor in a preliminary-injunction determination.  The circuit court applied the reasoning of the three-Justice plurality in Elrod v. Burns, 427 U.S. 347 (1976) (where political speech and freedom of expression are alleged to be threatened or impaired, the "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury", citing New York Times Co. v. United States, 403 U.S. 713 (1971)).  In applying Elrod -- a freedom of expression case -- to an Establishment Clause case, the D.C. Circuit joined the Second, Fifth, and Sixth Circuits.

Plaintiffs are non-Catholic Navy chaplains and an endorsing agency. They alleged that "the Navy prefers Catholics" in violation of the Establishment Clause.  The chaplains moved for a preliminary injunction.  The district court denied the motion because the chaplains failed to show any irreparable injury (one of the four factors necessary to grant a preliminary injunction).  The circuit court disagreed.  It applied Elrod to "purported Establishment Clause violations" not "simply by axiomatically applying Elrod's admonition * * * as other courts have done" but rather because the circuit court "emphasize[d] the language surrounding this maxim and note[d] its validity with respect to Establishment Clause claims."  The circuit court remanded to the district court to complete the remaining three preliminary-injunction factors. 

http://caselaw.lp.findlaw.com/data2/circs/dc/055143b.pdf

Traffic stop in California

The California Supreme Court recently held that an anonymous citizen's uncorroborated telephone tip of a possibly intoxicated highway driver in a blue van "weaving all over" on a specific part of a highway is sufficient, under the Fourth Amendment, to raise a reasonable suspicion to justify an investigatory traffic stop, although the police officer testified that he observed nothing to indicate that the driver was intoxicated before he stopped the van. 

The majority and dissenting opinions recognized a split of authority over the application of Florida v. J.L., 529 U.S. 266 (2000) (held: anonymous telephone tip that a young African-American man in a plaid shirt standing at a certain bus stop was carrying a gun was insufficient to justify a brief patdown search without some independent corroboration of the reliability of the tip). 

http://www.courtinfo.ca.gov/opinions/documents/S128640.PDF

California Supreme Court Rejects Armatta v. Kitzhaber Analysis of Separate Vote Requirement

Tom Christ provided the following summary of the California Supreme Court's decision in Californians for an Open Primary v. McPherson:

On May 25, the California Supreme Court held that the “separate-vote” provision in that state’s constitution, which regulates legislative referrals of constitutional amendments, is no “stricter” than the “single-subject” provision, which regulates initiated amendments. See Californians for an Open Primary v. McPherson, 38 Cal 4^th 735, 43 Cal Rptr 3d 315, 134 P3d 299 (2006). In the process, the court discussed at length – and ultimately rejected – the Oregon Supreme Court’s opinion in Armatta v. Kitzhaber, 327 Or 250 (1998), which held that “separate-vote” provision in Article XVII, section 1, of the Oregon Constitution is more strict than the “single-subject” provision in Article IV, section (1)(d)), although both serve the same purpose:  to prevent logrolling. The court distinguished Armatta in part because California’s separate-vote provision applies only to amendments by referral, not those by initiative, unlike Oregon’s provision, which applies to both.  The court in Armatta reasoned that Oregon’s separate-vote provision must be different than its single-subject provision in order to have any meaning.  That rationale does not apply to California’s separate-vote provision, the McPherson court concluded.  134 P3d at 346-47.

By the way, the California court also referred favorably to Judge Landau’s excellent law review article on the history-based arguments in construing state constitutions.  134 P3d at 305 and 329 (citing J. Landau, A Judge’s Perspective on the Use and Misue of History in State Constitutional Interpretation, 38 Val U L Reve 451 (2004)).

Remedies Clause further explained

Today, in Juarez v. Windsor Rock Prods., Inc., (Durham, J.), the Supreme Court unanimously held that Article I, section 10, does not "protect a claim for 'loss of society, companionship, guidance, emotional support, services and financial assistance,' brought by a parent and adult children of a person who was killed allegedly as the result of the negligence of his employer."  As a result, the court concluded that ORS 650.018, under which plaintiffs were not entitled to recovery of damages against the employer, did not violate Article I, section 10, as applied to plaintiffs.

Moving to Brothers (III)

Today's Oregonian reports that Initiative 24, which would amend the Constitution to require the election of Court of Appeals and Supreme Court judges by district, "appear[s] most likely to be on the November ballot."  (Note: the link probably won't work in 14 days, if not sooner, as the Oregonian moves its articles into a paid archive after that period).  Today is the deadline for initiative supporters to submit signatures to the Secretary of State.  Stay tuned.

My previous posts on this Initiative:

• How Would You Like to Move to Brothers (Part II)
• How Would You Like to Move to Brothers?

 

No Right to Same-Sex Marriage under New York Constitution

In Hernandez v. Robles, the New York State Court of Appeals held that the New York statutes limiting marriage to opposite sex couples did not violate the state constitution, or the U.S. Constitution.  In a nutshell, the court concluded that the limitation was rationally related to legitimate policy objectives and was, thus, constitutional.

Supreme Court Candidates Announced

CORRECTION TO POST:

Contary to the earlier report on the bar website, only eleven people applied for the Supreme Court position to be vacated by Justice Riggs.  According the OSB website, the candidates are:

Roderick Boutin
Nena Cook
Ann Fisher
Judith Giers
Christie Helmer
Lauren Holland
Mustafa Kasubhai
Charles Lee
Karsten Rasmussen
Michael Simon
Martha Walters