What's at stake in November: ballot initiatives

At her blog hunter of justice, the inestimable Nan Hunter has compiled a list of ballot initiatives that would change laws relating to gender and sexuality. The list includes nine states and ranges from initiatives to repeal local antidiscrimination laws in Maryland and Michigan; to bans on marriage, abortion, and adoption by unmarried couples; to a Colorado initiative to endow fertilized eggs with all the legal rights of persons. It's not just in California that ballot measures could make a big difference this year.

OT: Does our first modern "war crimes" case involve any war crimes?

Lawyers reading this have probably already sampled the already copious commentary out there about the Hamdan trial and verdict. For those who are curious, however, I commend to you Marty Lederman's post at Balkinization. In short, I think it is truly remarkable that the first US "war crimes" trial since the
Civil War involved charges that bear such little resemblence to the cases before other war crimes tribunals around the world (e.g., Sierra Leone, Rwanda, former Yugoslavia, Cambodia, and the various cases now before the International Criminal Court), or to historical war crimes cases.

Same-sex marriages to be "edited" out of 2010 Census

The Census Bureau has said that it will "edit" out same-sex marriages from the 2010 Census, purportedly to comply with the Defense of Marriage Act. The Census published a technical note in 2000 explaining why it would count "spouse" responses from same-sex couples as "unmarried partner" responses. At the time, two Census Bureau staffers produced a working paper arguing that "editing" these response in this way was distorting the demographic picture of same-sex couple households.

In 2000, of course, no state legally recognized same-sex marriages (at least not as a general matter, the unusual cases of some transgender people and their spouses notwithstanding), so (as Arthur Leonard notes) the question was merely theoretical (or to look at it in another way, one could assume that same-sex couples saying they were married were not, in fact, legally married). Now, California and Massachusetts do recognized marriage without regard to sex, so adhering to the same policy - even in those two states - means that couples who are in fact legally married in their state of residence will be shown to be "unmarried."

DOMA may or may not require the policy. Arguably, it only prohibits recognition of same-sex marriage for purposes of substantive law, not for the Census. (DOMA's definitional section reads: "In determining the meaning of any Act of Congress, or of any ruling, regulation or interpretation of the various administrative bureaus and agencies of the United States....") Moreover, even if it applied DOMA surely wouldn't bar the Bureau from reclassifying couples as unmarried, but breaking out these couples statistically from other "unmarried" couples, thus largely eliminating the loss of valuable data. If I read the news coverage correctly, the Bureau is in fact keeping track of these couples separately, but not in their published data; in published data, they'll be included with all other "unmarried partners."

Could this policy be challenged in court? Of course, you couldn't just sue for a declaratory judgment on the applicability of DOMA, because the Bureau could have created this policy on its own without DOMA. The Census Clause of the Constitution is really only concerned with counting heads for purposes of apportioning U.S. House sites. Beyond that, Title 13 of the U.S. Code pretty much lets the Census Bureau decide what other information to collect beyond that, so they don't have to ask about marital status at all. Past litigation over the census has centered on undercounting, overcounting, and residence determinations. Unlike those cases, whether couples are counted as married or unmarried doesn't affect the apportionment of House seats, nor is it apparent that it would affect funds provided private or public agencies that are based on population data.

The remaining obvious ground for a challenge is the Equal Protection right of same-sex couples who are legally married in their state of residence. Although the harm to such couples may be purely symbolic, this kind of injury is sufficient for standing if it sufficiently particularized, which it is here. Cf. Heckler v. Matthews, 465 U.S. 728, 737 (1984) (Social Security recipient had standing to challenge gender-based dependency requirement even if it did not affect the amount of his benefits).

The marriage equality movement has generally avoided the federal courts in favor of pursuing protections under state law, for sound strategic reasons. With a federal bench that is more conservative than ever, the chance that marriage litigation would set bad precedent is unacceptable. But might this case be different? The treatment of legally married couples in the Census presents a narrow question that is potentially quite distinct from the federal recognition of marriage for purposes of substantive legal protections and obligations, so that the biases of the judiciary may be less and any negative precedent could be narrowly cabined.

Of course, this was presumably the unsuccessful strategic thinking behind the federal court challenge to Nebraska's broad ban on recognition of same-sex relationships (Citizens for Equal Protection v. Bruning). While the plaintiffs tried to narrowly focus the case on the across-the-board prohibition of any form of relationship recognition, the Eighth Circuit produced a major negative federal precedent on the issue of marriage. One might hope that the Census dispute provides a clearer distinction, but one couldn't guarantee it. So while it seems on the surface that the Census policy could be challenged under the Equal Protection Clause, I'm not sure whether it's wise (from the point of view of same-sex couples) or likely. Which is unfortunate, because in light of the changes in the American legal landscape since 2000 - i.e., that there is now a substantial population of legally married same-sex couples in the United States - the Bureau's policy is almost certainly unconstitutional.

Sexual device ban to Supreme Court?

Back in February, a panel of the Fifth Circuit invalidated Texas's criminal ban on the sale of sexual devices (PDF). On August 1, a majority of the Fifth Circuit's 17 active judges voted not to rehear the case en banc (PDF), over the votes of seven dissenters. (One of these, Bush appointee Emilio Garza, called into question not only Lawrence v. Texas but forty years of privacy jurisprudence. Garza has often appeared on conservative Supreme Court shortlists.) The decision stands, in direct conflict to a decision of the Eleventh Circuit upholding a similar Alabama law. Given this split, a Supreme Court petition is likely. Will the Court hear the case? And if so, how will it decide?

The case turns, of course, on the scope of the Court's holding in Lawrence v. Texas. Lawrence was 6-3, and five of those six remain on the Court. O'Connor was of course replaced by Alito, who (I think it's safe to say) could be expected to vote to uphold the Texas law. Eugene Volokh has predicted that the Court will take the case and reverse, upholding the law. Dale Carpenter has a different take, noting that the Court may "simply believe the case is beneath its dignity, or is embarrassing, or does not involve an issue of sufficient importance," but guessing that if it took the case it would affirm 5-4. Both note possible grounds for distinguishing Lawrence: the relative importance of the implicated activity in people's lives, and in particular its role in intimate relationships. Assuming Kennedy's vote would decide the case, these certainly sound to me like they could be central factors.

On that basis, I'd suggest that both the likelihood of a grant of certiorari and the likelihood of affirmance would be significantly enhanced to the extent that the case can be framed as being about the right of persons with disabilities to achieve sexual intimacy with their partners, rather than about "the right to sex toys." There is a very strong case to be made that access to sexual devices is of great importance to people with a wide variety of disabilities -- from erectile dysfunction to limited mobility -- in achieving sexual intimacy in relationships. Framing the case in this way makes it very difficult to distinguish from Lawrence. (Indeed, the only relevant distinction noted by the judges who have favored upholding these laws is the commercial element- that it is selling the devices that is illegal, not using them - and the Court has already rejected a similar approach in the area of birth control.)

This concern was part of the Fifth Circuit's reasoning, as it was in state supreme court decisions striking down similar laws, but these decisions mainly focused on the general interest in sexual privacy, the degree of protection granted to that general right, and the state's interest in banning sex toys. While these broad principles should be sufficient, Lawrence strongly suggests that a focus on intimate relationships makes the strongest case, particularly for Kennedy. The right to use sex toys, in and of itself, seems to some as frivolous, and beneath the dignity of constitutional protection, as a "fundamental right to homosexual sodomy." The advantage of the device case is that since the law regulates and is challenged by sellers, who are asserting the rights of their buyers, focused arguments about the special harms to a class of affected persons can readily be made by any vendor; there is no need to find the factually perfect case.

To the extent possible on the existing record, the plaintiffs in this case should attempt to focus their case before the Supreme Court on the rights of persons with disabilities in the context of intimate relationships. Perhaps more importantly, the case could be helped by amici representing persons with various kinds of disabilities, or perhaps by medical associations.

Public opinion divided on marriage, Supreme Court

Expect some more substantive postings to come on family law and other matters, but for now I'll just pass on these results from a new Quinnipiac University poll:

"American voters oppose same-sex marriage and they don't want to recognize same-sex marriages performed in other states, but by a narrow margin, they don't want their states to ban it," said Maurice Carroll, director of the Quinnipiac University Polling Institute. "And they don't want to amend the Constitution on this issue. "Given a range of choices, they divide into thirds - for gay marriage, for civil unions, for a complete ban."

There are, of course, many ways to spin this: you can focus on majority opposition to same-same marriage as such, or on opposition to state and federal bans. Also, you can focus on marriage or you can focus on recognition and rights: While it's true that only a third of Americans say plain and simple that they support marriage equality, it's also true that only a third of Americans oppose legal recognition and rights for same-sex couples. That represents a huge shift in opinion over the last several years. (What's not news is that women are still significantly more likely to support marriage equality than men.)

And on the Court:

Looking at the U.S. Supreme Court and social issues, American voters narrowly disapprove 43 - 39 percent of the job the Court is doing, the lowest rating in five years of Quinnipiac University surveys on the Court and the first time the Court has received a negative score. Voters say 42 - 33 percent that the Supreme Court is moving in the wrong direction.

While 33 percent of voters say the Court is "about right," 25 percent say it is too liberal and 31 percent say it is too conservative.

So only a third of Americans think the Court's ideological balance is right, but the rest are divided between "too liberal" and "too conservative." It would be very interesting to follow these questions up by asking for specific examples of what the Court has been doing. Does this result reflect division of Americans on the high-profile social issues with which the Court is so often associated? Or do the people who think the Court is "too liberal" have different decisions and different issues in mind than the people who think it is "too conservative"?

U.S. v. Stevens: Violence good, prurience bad

As I mentioned, the Third Circuit this week in United States v. Stevens (PDF) held that a federal law, 18 U.S.C. Section 48, that criminalizes the sale of depictions of animal cruelty, violates the First Amendment. The court refused to treat depictions of animal cruelty as a category of unprotected speech.

Why? The court stated a lot of reasons, but I think it comes down to this: there's no sex. This is, as the court put it, "non-prurient" speech, and the same reasons that have been invoked to ban sexual speech can't be applied to ban this sort of speech, which is about depictions of cruelty with no sexual element.

The court even suggested that the statute would have been unconstitutional had Congress limited its scope to depictions of animal cruelty with sexual elements. It noted that the original impetus for the law was concern about "crush videos," a purported fetish genre in which leggy women crush small animals beneath their heels. The court quotes a House report: "In some video depictions, the woman's voice can be heard talking to the animals in a kind of dominatrix patter." The court essentially faults Congress for deviating (so to speak) from this narrow focus to a "broader focus on animal cruelty."

And while the court states some other reasons why this change in focus makes a difference, ultimately it comes down to this: the First Amendment, as construed by the courts, treats sexual speech differently and much less favorably than nonsexual speech, however objectionable it may be. The court specifically notes that the defendant in this case was not accused of producing "crush videos" but rather videos of dog fights. The opinion seems strongly to imply that if Stevens's dog fight videos had but included "a kind of dominatrix patter," sending him to jail would have been just fine.

And this is what is so insane about obscenity. To my mind, there is no compelling difference between criminalizing the distribution of depictions of child sexual abuse, and criminalizing the distribution of depictions of serious physical - but not sexual - child abuse. The fact is that we're talking about marketing a crime. The analogy between this and dog-fighting videos may or may not be sound, but the sexual element shouldn't make the difference. That it does so signals a basic fear and loathing of sexuality, above and beyond violence, at the core of our obscenity doctrine, which allows the criminalization of depictions of perfectly legal activities.

There is, of course, more to the decision:

The Government in this case argued that the law was closely analogous to those banning child pornography, and should be upheld for basically the same reasons. At face value, it would seem that some of the key justifications for banning child pornography apply to depictions of animal cruelty: the material at issue depicts criminal conduct that society has an interest in deterring, and the market of depictions of such cruelty creates an incentive for cruel acts. A key difference is that unlike child pornography, it cannot be said that the very distribution of such materials re-victimizes the animals that experience that cruelty. (Aside from the obvious reasons, the animals rarely survive.)

The court rejected this analogy, and ultimately I think its conclusion came down to this, the opening of the opinion:

The Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in over twenty-five years.

In other words, this would be a significant innovation in First Amendment law, and we're not going to be the ones to make it, however good the arguments.

The court said a lot more than this, but most of what it said was pretty mushy. Aside from the distinction I've drawn above with child pornography, the court said this:

Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm.

While most people would probably agree, the court admits that where the "compelling" cutoff lies "has not always been crystal clear." For the court, it comes down to this: the precedents generally concern the interests of humans. (The court tries to ground this distinction in a Free Exercise decision [Church of the Lukumi Babalu Aye v. City of Hialeah] that protected a religious group's right to sacrifice animals, but that case seems inapposite: there the Supreme Court didn't so much say preventing animal cruelty wasn't a compelling interest as it said that the government couldn't permit animal killings for most reasons but ban it when done for religious reasons.)

The court also found lacking the animal-cruelty statute's exception for works with "serious religious, political, scientific, educational, journalistic, historical, or artistic value." The difference is that with obscenity the work must be "taken as a whole," whereas the animal-cruelty law had no such restriction.

Beyond that shortcoming, however, the court sees another problem that I think is very telling. It notes that this type of exceptions clause has never been applied to "non-prurient" speech, and that "outside of patently offensive speech that appeals to the prurient interest, the First Amendment does not require speech to have serious value in order for it to fall under the First Amendment umbrella." So we're back to the prurient/non-prurient distinction.

This case, like the FCC nipple case, and the Child Online Protection Act case, is almost certainly destined for the Supreme Court, since a federal statute has been declared invalid. As with previous cases concerning the boundaries of the First Amendment, it's very unlikely the Court will reconsider any of the basic problems with its decisions on obscenity and indecency, but it will surely be an interesting ride.

Three important First Amendment decisions

The Third Circuit Court of Appeals issued three important First Amendment cases this week, at least one of which I will discuss further this week.

ACLU v. Mukasey (PDF): Holding that the Child Online Protection Act facially violates the First and Fifth Amendments. The trial on the constitutionality of COPA in 2006 was a fascinating episode in the annals of First Amendment history- check out Nerve.com's blog of the trial. Mark Regazza Marc Randazza has a (highly opinionated as always) rundown of the decision at the Legal Satyricon.

CBS v. FCC (PDF): Holding that the FCC's abrupt rule change, used to fine CBS for its Super Bowel Bowl "wardrobe malfunction" was arbitrary and capricious because it treated fleeting 'indecent' images in live broadcasts more harshly than fleeting verbal expletives.

U.S. v. Stevens: (PDF): Striking down a federal law criminalizing the sale of depictions of animal cruelty, and voiding the conviction of a distributor of dog-fight videos. The Government unsuccessfully defended this law as closely analogous to laws against child pornography.

Sex is a "major life activity" under the ADA

Joining the Ninth Circuit, the D.C. Circuit today holds that sex is a "major life activity" for purposes of the Americans with Disabilities Act. (Well, technically the Rehabilitation Act, but the two laws overlap almost completely.) The Act defines a "disability" as "a physical or mental impairment which substantially limits one or more . . . major life activities" - a standard plaintiffs must meet to make a disability discrimination claim. The Supreme Court held that reproduction is a major life activity in Bragdon v. Abbott (1998) (which also recognized that asymptomatic HIV may qualify as a "disability").

The D.C. Circuit's decision says:

Based on the statute’s text, the Supreme Court’s reasoning in Bragdon, and a hefty dose of common sense, we hold that engaging in sexual relations qualifies as a major life activity under the Act.

Beginning with the statute, we can easily conclude without resorting to the dictionary that engaging in sexual relations clearly amounts to an “activity” in any sense of that word. As for the word “major,” the Supreme Court has explained that “the touchstone for determining an activity’s inclusion under the statutory rubric is its significance.” Id. (internal quotation marks omitted). At the risk of stating the obvious, sex is unquestionably a significant human activity, one our species has been engaging in at least since the biblical injunction to “be fruitful and multiply.” Genesis 1:28. As a basic physiological act practiced regularly by a vast portion of the population, a cornerstone of family and marital life, a conduit to emotional and spiritual fulfillment, and a crucial element in intimate relationships, sex easily qualifies as a “major” life activity.

Yes, that's right, the court just cited the Book of Genesis as an authority on the importance of sex!

The court says that the State Department didn't dispute this point, but the dissent notes the Government's position was narrower than the court's: it argued that sex "can" qualify as a major life activity "to the [extent] that procreation may be limited." So we're back at Genesis: it's only really the fruitful multiplying that matters. Unfortunately, given the court's language, the decision could easily be interpreted as stating that narrow, heterosexist position.

Today's decision, Adams v. Rice (PDF), concerns a woman who suffered from breast cancer and was denied an overseas post with the State Department, even though (allegedly) treatment had rendered her cancer-free. Adams argued that she was disabled in part because her treatment had deleterious effects on her sex life. In an affidavit she said:

Like many breast cancer survivors, whether by virtue of my discomfort with the way my body looks, loss of sensation after my surgeries, my deep-seated fear that prospective suitors will reject me because of my history of cancer, loss of a breast, and current physical appearance, or the side effects of medication that causes loss of libido, I now find that the prospect of dating and developing an intimate relationship is just too painful and frightening. While I have overcome the physical disease, my ability to enter into romantic relationships has been crippled indefinitely and perhaps permanently.

For whatever reason - and to my mind surprisingly, but happily - the State Department did not dispute the allegation that Adams's sex life was substantially limited. So the court was not called upon to determine whether the impact of disablism - which is, it seems to me, among the reasons Adams is saying her sex life has been limiting - can be part of the "substantial limitation" analysis. But as the court pointed out, the jury will ultimately make this fact determination. One imagines that the State Department's cross examination of Ms. Adams could get pretty ugly.

Also of interest, the Government argued that its treatment of Adams on account of her cancer wasn't illegal because, well, how were they supposed to know Adams wasn't getting laid, and therefore was disabled? The court rightly rejected this argument.

The dissent seems to say that Adams has not produced evidence of a disability because a) she has not been clear about when her sex troubles started, and b) her real problem is her man-repelling mastectomy, not the cancer itself.